The Victorian Legal Services Commissioner

The Integrity of The Victorian Legal Services Commissioner

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Contact Diarmuid Tel 0401416305                                                         email charada@mira.net

In 1996 the office of The Victorian Legal Ombudsman was created.

“The first Legal Ombudsman, Marg O’Donnell, established a regulatory body based on principles of propriety, integrity and fairness. Abel y assisted by Deputy Janet Cohen and a committed staff, Marg O’Donnell put in place a complaint handling system with two core purposes in mind – the protection of the public and the betterment of the legal profession.”

In 2004 The Legal Ombudsman`s office was replaced by the office of the Victorian Legal Services Commissioner. The outgoing Legal Ombudsman in her 2003 Annual Report pays a great deal of attention to the integrity of the new office that will regulate lawyer behaviour.

Please refer to Refer message from the Legal Ombudsman

The Legal Services Commissioner will be the sole receiver of all complaints. As I have already stated, this is a positive step that will end confusion for complainants. However, while the commissioner will receive all complaints it is not clear what will happen to these complaints after they have been received.

The new legislation contains a provision for the commissioner to delegate powers and functions. This means the commissioner will be able to refer complaints to the lawyers’ associations for investigation. It is also possible the commissioner could delegate to these professional associations the power to prosecute.

Or any other powers for that matter. This provision to delegate has the potential to undermine the whole purpose of reform. We could end up with a system less independent than what we have now.

In the hands of a strong and forthright commissioner, the power to delegate would not be a problem because this commissioner would be careful to exercise that power in a judicious and responsible way.

But we should not have to rely on the strength of an individual to uphold the integrity of a system – integrity must be built into the system.

Other features of the new system will make it difficult for even a strong and forthright commissioner to remain independent.

In addition to being responsible for complaint handling, the Legal Services Commissioner will also be CEO of the Legal Services Board, the body responsible for other regulatory functions such as issuing practising certificates and operating the fidelity fund. The board will comprise three members of the legal profession, three non-lawyers and a chairperson who may or may not be a lawyer.

The commissioner is supposed to be independent of the board with regard to complaint handling; however it is difficult to see how this will work in practise. The commissioner will be reappointable by and answerable to the board on all other matters including expenditure. It will be important for the commissioner to stay in the board’s favour, so there is the very real risk that this could influence the commissioner’s complaint handling role.

A possible scenario: under pressure from the lawyers on the board, the commissioner decides to delegate all investigations and prosecutions to the professional associations. If anyone thinks that is a worst-case scenario, it is worth noting that it is nothing more than what the professional associations lobbied for in the review process.

As it is currently proposed, the new system will only work in the hands of a very strong commissioner prepared to stare down the lawyers’ professional associations. Such strength and integrity will be hard to find in an individual. They are virtues that should have been built into the system.

In closing, it has been a great privilege to serve in this role for the last 5 years and to have played a part in such an important area of consumer protection.

KATE HAMOND

Legal Ombudsman

During this transition period the Attorney Generals Department had a responsibility to the Victorian Public through its duty of care to ensure that the new system was working in the interests of the public. By 2009 the Victorian Ombudsman received 95 complaints from the public against the Legal Services Commissioner. So great were his concerns that he conducted his own motion report and published his findings in his 2009 annual report in which he stated.

“I also conducted an own motion investigation into the Legal Services Commissioner and its decision-making processes under section 14 of the Ombudsman Act because of the number of complaints I had received. My investigation identified a lack of understanding by staff of the Legal Services Commissioner’s statutory powers and a restricted skills-set to conduct investigations. The Legal Services Commissioner’s investigators showed limited knowledge of the basic techniques of investigative processes. Case files lacked:

  • investigation plans
  • thorough and professional approaches to gathering evidence
  • follow-up on serious allegations
  • substantiating documents such as practitioners’ files
  • timely conclusions
  • verification of practitioners’ responses
  • reasons for decisions.

I made 28 recommendations to the Legal Services Commissioner and am pleased to note that it has taken steps to address a number of problems identified in my own motion investigation. I intend to review the Legal Services Commissioner’s implementation of my recommendations over the next year. I also referred the report of my investigation to the Attorney-General for his information, particularly in relation to the inability of the Legal Services Commissioner to re-open cases on the basis of merits.”

Clearly this report exposes the Attorney General`s Department and the Legal Industry to a claim by the Victorian public that they have breached their duty of care by not closely monitoring the inner workings of the Legal Services Commissioner`s Office during this important transition period. It exposes these entities to claims of incompetence coupled with extreme bias in favour of the legal profession at the expense of the public.

The refusal of the entities involved to make the Ombudsman’s report available to the public when truth can only be created through transparency which allows the public to trust the integrity of the system is contrary to the basic principles of common sense.

The failure of the Attorney General`s Department to address the issue of reopening cases based on merit and handballing it into the federal arena where it appears to have become lost in space is a corruption of the process.

It is unfortunate that some of that brutality of our nations origins has still been allowed to remain and is clearly shown in the way your law firm and Ian Bult has treated my mother`s final wishes. It is not an abuse that one would experience as a child being abused by a pedophile priest, it is not an abuse a person would have experienced within the holocaust, but it is the type of abuse experienced in a jail by a convict without any rights, when confronted with a system that does not value the welfare of family cohesion and I for one will not allow this revulsion to continue in a country where my children and their children are to live their lives.  

Let us work through this letter word by word sentence by sentence and let us hope that if there is a god in heaven and a devil in hell, that after reading it, you may eventually be able to decipher the difference between right and wrong, between abuse and caring, between the blatant brutalisation of a family by a barbaric power crazed lawyer and the nurturing and care a natural mother has for her children. Once you can acknowledge that difference, you will realise that the abhorrent behaviour generated by Ian Bult and the failure by all of you to intervene, is another form of unfettered abuse carried out against innocent and powerless people, by those that have been placed in a position of ultimate trust and that it is no different to the behaviour exhibited by the institutions who failed to prevent the sexual abuse of children by people who were entrusted to care for them or by the Nazi government of Germany that allowed its laws to be reinterpreted, which led to the holocaust. It is called the abuse of power by those in whom we give our trust.

Response by the Law Institute of Victoria to my concerns about Ian Bult of the Melbourne Law Firm Russell Kennedy April 2005. 

Read complaint The impotent regulators

Proffessional standards response 15 april 2005

proff standards pg2

Proffessional standards response 15 april 20051

Complaint Two Mr. Ian Bult of The Melbourne Law Firm Russell Kennedy

04 09 2009

 To the Legal Services Commissioner

I am forwarding you a complaint against Ian Bult of Russell Kennedy. The complaint concerns the mechanisms used by Ian Bult of Russell Kennedy in managing the estate of my late mother. These mechanisms involve the abuse of the human rights of my late mother’s nuclear/extended family, misleading and deceptive conduct and a breach of fiduciary duty.

Ian Bult was my mother’s solicitor. The Victorian members of Russell Kennedy along with my sister ******* ******* were appointed executors of her will and trustees to any trusts within her estate, giving a family member, supported by a legal firm the responsibility for distributing her assets to her family.

The resulting actions by Ian Bult of Russell Kennedy have failed to carry out the wishes of my late mother. Their actions have split my mother’s family, cost the estate and the beneficiaries at least $110,000 in lost inheritance, caused incalculable psychological damage to all members of my mother’s family and have left the matter unresolved during the past four and a half years.

The actions of Ian Bult of Russell Kennedy involve:

The provision of poor advice by Ian Bult to my late mother in the formation of her original will written in 1998. (Not her final will which was written in 2002)

  • Abusive and bullying tactics used against the family soon after my mother’s death by Ian Bult/Russell Kennedy.
  • The withholding of vital information from the family member executor and my mother’s family by Ian Bult of the Melbourne law firm Russell Kennedy which has prevented her family from determining our mother’s final wishes.

The withholding of this information from my mother’s family by Ian Bult of the Melbourne law firm Russell Kennedy has prevented them from properly investigating a difference of opinion with regards to the interpretation of my mother’s will between Ian Bult the lawyer/executor and my sister the family member executor and the whole of my mother’s family. Ref Appendix (5), (7), (8), (9), (10).

  • Undue pressure placed upon the family member executor to resign her position as executor and to not join in probate with Ian Bult/Russell Kennedy.
  • Misleading and deceptive behaviour. At the time of communicating with The Ethics Committee, neither my lawyer nor any member of my mother’s family had access to Appendix (1), (2), (3). Neither my lawyer nor my brother **** or my other sister ****** had access to Ref. Appendix (6), (7).

If the Ethics Committee were made fully aware of the facts that Ian Bult had access to they would have been better informed and would have been able to see the conflict of interest that existed between Ian Bult/Russell Kennedy and my mother’s estate. Ian Bult of Russell Kennedy has misled and deceived the Ethics Committee by failing to openly provide this information to them. Ref. Appendix (17).

(6) Failure by Ian Bult of the Melbourne law firm Russell Kennedy to arrange for a transfer of executor ship to a member of Russell Kennedy upon his retirement from the firm.

(7) Ian Bult invested monies, set aside in trust into the stock market rather that spreading the risk of such investment which would have been prudent after he had  thus performing the duties of the executor when his position was questionable.

(8) Failure to provide the beneficiaries of a disputed trust with yearly financials of the trust.

(9) Failure to rent out a retirement unit that is part of the estate.

(10) Failure by Ian Bult of the Melbourne law firm Russell Kennedy to provide a detailed record of the financial affairs of the estate to the beneficiaries. Failure to provide the tax returns of the estate. Failure to provide a detailed account of their fees and charges to the estate despite repeated requests for this information.

(11) The resolution by the trustee Ian Bult 1/07/09 to 30/07/09   appears to be in contradiction to my mother’s will.

These actions by Ian Bult of the Melbourne law firm Russell Kennedy involve incompetence, a conflict of interest, an abuse of human rights and a breach of fiduciary duty.

Point (1)

1.1 In 1998 my mother corresponded with Russell Kennedy regarding her last will and testament. I enclose Letter 1 23/10/98 Ref Appendix (1)   Letter 3 01/12/98 Ref Appendix (3) and a draft copy of her will Ref Appendix (2).

Letter 1 and 3 discuss the setting up of a trust to protect my share of the estate from my trustees in bankruptcy. Letter no 2 30/10/1998 which is a letter written by my mother to Ian Bult is not available because Ian Bult of the Melbourne law firm Russell Kennedy refuse to give the beneficiaries of the estate a copy claiming client legal privilege.

1.2 My mother was concerned about my own financial position as the company I was running had been forced into voluntary administration as a result of the loss of a large export order. The company entered into a deed of arrangement with its creditors in February 1997 and completed the deed in September 1998 two months prior to the communications she had with Ian Bult regarding her will.

1.3 During those communications Mr. Bult failed to explain the finer points of insolvency law to my mother and did not make her aware of the major difference between a company going into administration, signing a deed of arrangement and completing that deed; and personal bankruptcy, despite the fact that he was a commercial lawyer and this was a major concern for her in protecting my share of the estate.

1.4 Mr. Bult did not advise my mother or the family member executor that it would be important to specify in detail the wishes of my mother on how my share of the estate should be managed so as to avoid any unnecessary litigation. He did not mention that it would be important to attach any other information to the will regarding the trust. In particular a letter (Letter no 2 30/10/1998) which he had in his possession and that he states determines the wishes of my mother.

1.5 Mr. Bult did not inform my mother of the risks associated with her will in regards to the legal costs that could be bought against the estate if a dispute were to arise between him and the beneficiaries.

1.6 Mr. Bult failed to inform my sister the family member executor of any concerns he had in relation to how my share of the estate should have been distributed prior to my mother’s death.

1.7 Mr. Bult failed to advise my mother of the importance of providing for ascendancy of the family member executor by another member of the family in the event of unforeseen circumstances arising in her will.

Point (2)

After my mother’s death the family got together and we read the will, copy enclosed. Ref Appendix (4). There was some discussion regarding my share of the estate as it was placed into a testamentary trust to be distributed by the trustees as they sought fit. This is standard protocol when protecting assets from the trustees in bankruptcy. Since I was not or ever have been a bankrupt we decided with the agreement of my sister *********** who was the family member executor appointed by my mother, that the will should be split equally and that she would use her discretion as the family representative to ensure I and my family would be treated equally. There was never any indication from my mother to her children that this was not the case. My two sisters, my brother, and both of my sisters’ husbands’s had a meeting with Ian Bult of the Melbourne law firm Russell Kennedy and put this proposition to him.

His initial response was to state that if things were to get complicated it would cost the estate a lot of money. This statement was taken as a threat by my brother and two sisters.

He stated that he disagreed with the proposal and would have to go and investigate his notes. He mentioned to them that if things were to get complicated it would cost a lot of money. He was advised by my sister’s husband ********* who is a trained medical practitioner and my sister ********* and her husband who are both trained psychologists, of the damaging effects an uneven distribution of the estate would have upon the family well being. Mr. Bult refused to engage the extended family in the decision making process of determining my mother’s true wishes and was oblivious to their trained and expert advice. Ref Appendix (5) (10)

Ref Appendix (4)

Clause 4 (a) during the lifetime of my son DIARMUID MAURICE ST. JOHN HANNIGAN to pay to, or apply for the benefit of him, his wife and children, all or any part of the income and all or any part of the capital of the DMST.JH Share in such shares and amounts and at such times as my Trustees from time to time in their discretion think fit without obligation to benefit all or part of them or to treat equally those whom payments are made.

This clause contained in my mother’s will gives the trustees of her estate the power to comply with the wishes of my mother’s living family to distribute her estate equally to her four siblings without contesting her will.

Point (3)

During August 2004 my sister ************** who was the appointed family member executor approached Ian Bult and requested a copy of a letter he stated that he had that was written in 1998 to him by my mother, leading him to believe that my mother’s children should not be treated equally and instructing the executors/trustees of my mother’s estate to place my share of the estate into a testamentary trust.

Mr. Bult refused to provide a copy of this letter to my sister, the deceased’s legal representative stating legal client privilege. I presume this is Letter no 2 30/10/98 that I have already mentioned.

I have enclosed a signed statutory declaration from my sister*********** describing her request. Ref Appendix (6).

This refusal by Ian Bult/Russell Kennedy goes to the core of the complaint as it then set the process in motion for a drawn out legal discourse which has allowed Ian Bult of Russell Kennedy to draw down at least $60,000 in fees and has led to the splitting of my mother’s family.

The points I raise over this matter are extremely serious as this action by Ian Bult of the Melbourne law firm Russell Kennedy gave the legal professionals greater power than the family appointed executor (my mother’s legal representative) to determine her final wishes, legal professionals who were entrusted by my mother to care for her family after her death. This power imbalance created by Ian Bult of Russell Kennedy set the wheels in motion of a destructive and costly legal process upon a naive, inexperienced, grieving and innocent family. A family comprising of four children three of whom also have their own separate families a total of seven adults and seven children have all been damaged either financially or psychologically.

It is a well known fact that the withholding of important information from people places the holder of the information in a more powerful position and is a tactic that is commonly used by abusers and bullies. This tactic is a form of psychological abuse and when used by a lawyer/executor in a deceased estate matter is also a financial abuse, as it will certainly lead to creating a dispute from which the lawyer/executor will benefit in the form of fees and charges to himself as the executor and for his firm who is doing probate.

This puts the law firm and the lawyer/executor into a position where they are abusing the human rights of the family of the deceased, they have a conflict of interest and the executor is breaching his fiduciary duty to the estate.

The following points are relevant when considering whether or not Ian Bult/Russell Kennedy needed to maintain their position of client confidentiality in relation to withholding this information.

3.1 Is this letter a privileged document and was it ever a privileged document?

A document of privilege between a client and a lawyer is one where the client is seeking legal advice and where the lawyer is giving legal advice.

When reading the correspondence to my mother from Ian Bult it appears as if the legal advice had already been given and the letter contained clarification of a few points and the correction of the spelling of my name. Ref Appendix (1) (3)

A document of privilege between a client and a lawyer is one where the client gives confidential information to the lawyer which has not been shared with a third party.

My mother had four children the youngest of which she appointed as executor to her will. There were no secrets within our family that would be contained within the letter held by Ian Bult of Russell Kennedy as all information about our family affairs was well known to all of her children.

Having regard for the fact that the family has two parts of a set of three pieces of confidential information, ref Appendix(1), (3) it would be possible to state that the confidentiality no longer existed and was not meant to exist with regards to the second part of the communication. The only reason that it was not part of the records maintained by my mother and held by her family was because she would have written her correspondence with pen, ink, and paper and did not have access or was not aware of the imperative of making a copy of this part for her family as she trusted the legal system and her solicitors.

3.2 Why if this letter is so important in determining the outcome of my inheritance was it not attached to the will and why was there no communication from Ian Bult in his subsequent letter (Letter 3) to that effect?

3.3 When Ian Bult, my mother’s solicitor became the executor of the estate he then took on board a different position and was no longer a lawyer. By having access to the letter, defined as privileged by himself and the Melbourne law firm Russell Kennedy does not that privilege cease as the information has now been revealed to a third party? I E the executor.

3.4 Under Australian law if the information withheld by Ian Bult of Russell Kennedy was found to have legitimate client legal privilege a court would order that the privilege be lost.

Refer Essential Evidence Third Edition Authors Colin Yin, David Baker. IBSN 1876905352 Pg 124 – 125

Intentions or competence of dead client.

Client legal privilege does not prevent the adducing of evidence relevant to a question concerning the intentions or competence in law, of a client who has died (S121 (1) ). Thus where an issue arises in proceedings as to the testamentary capacity of a deceased client in a testator family maintenance or family provisions case, the privilege will not apply to prevent evidence being led of confidential communications or documents made or exchanged between the deceased client and his or her lawyer.”

Also refer to N S W Evidence act 1995 SECT 121,

Victorian evidence act 2008 SECT 121

121 Loss of client legal privilege—generally

(1) This Division does not prevent the adducing of evidence relevant to a question concerning the intentions, or competence in law, of a client or party who has died.

  1. 120

Chapter 3—Admissibility of Evidence Evidence Act 2008 No. 47 of 2008 97

(2) This Division does not prevent the adducing of evidence if, were the evidence not adduced, the court would be prevented, or it could reasonably be expected that the court would be prevented, from enforcing an order of an Australian court.

(3) This Division does not prevent the adducing of evidence of a communication or document that affects a right of a person.

Ian Bult of the Melbourne law firm Russell Kennedy would have been fully aware of all of the legal points and would have known that if the matter were to be bought through the courts that a judge would have ordered that the family have access to the letter.

They would have known that the only way to obtain the letter was to apply to contest my mother’s will through a Part 1V application for family provisions. This would have cost at least $20,000. $10,000 from my side in briefing counsel and $10,000 on their side defending the matter. Further more I would have had to erode the value of the monies held in trust for the benefit of my own family and extended family by participating in the process which would have breached my own fiduciary duty as a father to my family and as a brother to my mother’s children.

This action by Ian Bult of the Melbourne law firm Russell Kennedy amounts to an abuse of human rights as it creates a position under the law whereby a family who is in the care of the legal profession is put at a financial disadvantage at the onset of the process. The legal profession has access to the information and can make judgments as to whether or not the evidence will assist in any determination by the court, where as the family is flying blind and has to expend $20,000 to access the information. $10,000 of which goes to Ian Bult of Russell Kennedy, creating a conflict of interest and a breach of fiduciary duty.

The action by Ian Bult of the Melbourne law firm Russell Kennedy has created a power imbalance in favour of Ian Bult of Russell Kennedy (Lawyers) over the members of my mother’s family.

Please refer to:

CharterOfHumanRightsandResponsibilities

Protection of Freedoms and Rights for Everyone in Victoria.

Preamble

“At the heart of Victoria’s Charter of Human Rights and responsibilities is respect: the belief that everyone is entitled as we say, to ‘a fair go’.

Recognition and equality before the law

People have the right to equality before the law.

Protection of families and children

Families, as the fundamental group unit of society, are entitled to be protected by society and the State.

Privacy and Reputation

A person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with and the right not to have his or her reputation unlawfully attacked.

Ian Bult has stated that by providing this letter to the family it will create more psychological distress than already exists, this is an outdated method of dealing with family issues. Contemporary psychology is familiar with the long term damage that withholding information from people causes and advocates the free exchange of information so as people can get on with their lives.

By maintaining control of this information Ian Bult of the Melbourne law firm Russell Kennedy remain unaccountable for their actions.

By failing to involve my mother’s children in the interpretation of the Letter no 2 that Ian Bult has in his possession Ian Bult of the Melbourne law firm Russell Kennedy have allowed an interpretation of my mother’s will through that of a stranger to her family. A more accurate interpretation would be created by revealing the letter to the family and listening and taking on board their interpretation of its contents, considering the time lapse between this letter, the last will and testament and my mother’s eventual death. A whole of family interpretation would consider the undeniable reality that emotional and financial situations are a dynamic of our lives.

Point (4)

After failing to exchange crucial information with my sister the family member executor Ian Bult wrote to her advising her that they were in disagreement and that Ian Bult of the Melbourne law firm Russell Kennedy strongly advised her to renounce her probate of the will. Ref Appendix (7)

Point (5)

Ethics Committee Ruling R4179 November 2004 Conflict of interest.

In Russell Kennedy’s submission to The Ethics Committee, Ian Bult has failed to provide them with copies of Appendix (1), (3), (5), (7) and the fact that the family member executor was in disagreement with him as to the matter of how the Diarmuid Hannigan share of the estate should be dealt with. Ian Bult also failed to explain to The Ethics Committee that he had been asked for a copy of a letter written to him by my mother presumably on 30 10 1998 referred to in Appendix (3) which would have shed light on the matter. The act of concealing this information from The Ethics Committee and the beneficiaries of the estate has led to Ian Bult engaging in misleading and deceptive conduct.

Throughout his submission he claims that I was attempting to overturn the wishes of my late mother. This was a mistruth as I had no objection to her will. Rather our whole families were and are concerned as to how Ian Bult intended to deal with my share of the estate.

Ian Bult failed to inform the Ethics Committee:

That his interpretation of my mother’s wishes was at odds with the family including the family member appointed to act on my mother’s behalf.

That he had failed to provide the evidence that led him to his position to the family appointed executor.

That he had failed to involve the extended family in the decision making process.

That he had behaved in an antagonistic manner and instead of bringing the issues to mediation and resolution had instead agitated in order to perpetuate any disputes between him and family members. Ref Appendix (12), (5), (6), (7), (12).

Another point of concern relates to the fact that my solicitor John Pavlidies has repeatedly made requests to the Ethics Committee for the reasons as to why they allowed the Melbourne law firm Russell Kennedy to administer probate of the estate and failed to see a conflict of interest. I would appreciate it if you in your position as Legal Services Commissioner could obtain those reasons for me and my family. Ref Appendix (17)

Point (6)

My mother names her daughter ************* and Victorian members of the firm of solicitors Russell Kennedy as the executors/trustees of her estate. Refer Appendix (4) Clause 1

This means that my mother intended to have her daughter ********** act as the executor/trustee of her estate supported by the knowledge and expertise of the members of the Melbourne law firm Russell Kennedy. Not as is now the case of Ian Bult acting as a single entity.

Ian Bult resigned from the Melbourne law firm Russell Kennedy in July 2007 and has continued to act as executor/trustee of my mother’s estate. After Ian Bult resigned as a member of the Melbourne law firm Russell Kennedy he has continued to make decisions regarding my late mother’s estate and decisions regarding the proportion of my inheritance that he insisted in placing into a testamentary trust.

Ian Bult was fully aware of his resignation date and should have arranged to transfer his executor ship to another member of Russell Kennedy before leaving the firm.

Point (7)

During August 2007 Mr. Ian Bult invested $78000 of money held in the testamentary trust, a trust that had no basis and no purpose as far as the family is concerned into the share market leaving $5000 in cash in his firm’s trust account.

This action occurred after Ian Bult was no longer a member of Russell Kennedy. and just prior to the stock market crash without advising any of the beneficiaries of his plan.

Ian Bult`s decision to invest such a large proportion of the money held in trust into shares instead of spreading the risk over a variety of investments appears to be lacking in financial acumen. A prudent investor would spread the risk by investing a percentage in shares, a percentage in cash management, and a percentage in property. Ian Bult invested 90% into shares which are currently valued at $38,000 a capital loss of $40000.

During the period of the establishment of the trust which has been over a period of four years Ian Bult of the Melbourne law firm Russell Kennedy have never sent a statement of the financial affairs of the trust to the beneficiaries of the trust.

The executor Ian Bult is in possession of a retirement unit that is part of the estate. Prior to my mother’s death this unit was rented at $600 per month. The Melbourne law firm Russell Kennedy informed the management of the retirement village not to rent out the unit. This decision has resulted in a loss of revenue to the estate of at least $30000 over the past four years. This is a breach of fiduciary duty by Ian Bult of the Melbourne law firm Russell Kennedy. They are fully aware of the difficulties involved in realising the capital value of this unit in the form of a sale and should have ensured it continued to realise rental income for the benefit of the estate.

Despite repeated requests to Ian Bult of Russell Kennedy for

The tax returns of the estate.

  • The full financial accounts of the estate.
  • A full and detailed account of the charges made by Ian Bult of the Melbourne law firm Russell Kennedy against the estate.
  • The letter no 2 that justifies all of Ian Bult of the Melbourne law firm Russell Kennedy actions.

All of this information is being withheld from the beneficiaries of my mother’s estate by Ian Bult of the Melbourne law firm Russell Kennedy.

This means that the family of my mother still has no idea as to whether or not our mother’s wishes in regards to her estate have been fulfilled.

  1. The lawyer Ian Bult and his firm Russell Kennedy remain unaccountable to her family for their actions.
  2. The legal costs charged against the estate by Ian Bult and the Melbourne law firm Russell Kennedy of at least $60,000 remain unjustified
  3. The financial losses of at least $110000 of the estate in relation to distributions that should have occurred to my mother’s family remain unexplained.

Please refer to the will clause 4. and to Appendix 16

The will mentions me, my wife, and my four children as beneficiaries of the trust. The resolution by Mr. Ian Bult for the year 2007 to 2008 omits my wife from receiving any income derived by the trust. He has not offered any explanation for his decision and I do not want to press the point as he will charge the trust for his time at $500 per hour plus G S T. I will have to put the question to him through his solicitor Daniel Kelleher of the Melbourne law firm Russell Kennedy who will charge at $400 per hour plus G S T. The process will involve.

1) A conversation between myself and Daniel Kelleher.

2) A conversation between Daniel Kelleher and Ian Bult.

3) Another conversation between myself and Daniel Kelleher

Estimated cost to the trust of at least $600 to question Ian Bult about a simple error he has made.

Ref Appendix (4)

Clause 4 (a) during the lifetime of my son DIARMUID MAURICE ST. JOHN HANNIGAN to pay to, or apply for the benefit of him, his wife and children, all or any part of the income and all or any part of the capital of the DMST.JH Share in such shares and amounts and at such times as my Trustees from time to time in their discretion think fit without obligation to benefit all or part of them or to treat equally those whom payments are made.

I raised the issue with Daniel Kelleher about six months ago but unfortunately he has not responded.

This whole fiasco Points 1 – 11 has eventuated because:

  • Ian Bult/Russell Kennedy failed to give proper advice to their client Elizabeth Hannigan in 1998 regarding the setting up of a testamentary trust to protect the assets of the Diarmuid Hannigan share of the estate.
  • Ian Bult/Russell Kennedy failed to share and discuss essential information with the family appointed executor and my mothers other three children so as my mother’s wishes could be carried out.
  • There are two other matters in the way Mr. Ian Bult has acted that have raised concerns by the beneficiaries.

(1) Whilst my mother was alive she attempted to sell her retirement unit in order that my brother could obtain a deposit to purchase a house. Ian Bult as her solicitor became involved in the process. When she questioned his bill he charged her for the time spent on the telephone to him about that inquiry.

(2) My sister ********** raised a complaint with the Legal Ombudsman against Ian Bult of the Melbourne law firm Russell Kennedy. Mr. Ian Bult charged the estate for the time he spent reading the complaint.

I thank you for considering my complaint against the actions by Ian Bult /Russell Kennedy in the manner in which they have managed the affairs of my late mother’s estate and request that you have due consideration of its impact on the wider community with regards to Human Rights Abuses and conflict of interest implications for lawyers and their firms who are acting as executors of deceased estates and their fiduciary obligations to the beneficiaries of these estates.

I would appreciate your involvement in you capacity as Legal Services Commissioner in assisting me in obtaining the following information from Ian Bult of the Melbourne law firm Russell Kennedy.

1.The tax returns of the estate

  1. The full financial accounts of the estate
  2. A full and detailed account of the charges made by Ian Bult of the Melbourne law firm Russell Kennedy against the estate
  3. The letter no 2 that justifies all of Ian Bult of the Melbourne law firm Russell Kennedy actions.
  4. Ensuring that Ian Bult does not destroy the original Letter number 2 after five years as may be a prerogative that he may holds within his legal powers.

I would appreciate your involvement in you capacity as Legal Services Commissioner in assisting me in obtaining the reasons behind the Ethics Committee Ruling R4179 November 2004 Conflict of interest.

This information will assist my mother’s family in determining what her wishes were in regards to how her estate should have been distributed. The financial information will ensure us that all monies in the estate are accounted for.

Yours Sincerely

Mr. Diarmuid Hannigan.

Response to complaint 2 by the Victorian Legal Services Commissioner.

 

Legal Services Commissioner Reply 04 09 2009 pg1pg1

 

Legal Services Commissioner Reply 04 09 2009 pg2pg1

 

Legal Services Commissionerfoi jan 2012 aa

 

Legal Services Commissionerfoi jan 2012 Aaa

This Letter of complaint Regards Ian Bult and the Melbourne law firm Russell Kennedy. Includes irrefutable evidence that they lied to my mother`s children about what her final wishes were. 

Diarmuid Hannigan                                            236 Smith Street Collingwood.                                Victoria 3066                                                           03 94195044 charada@mira,net                         Sunday 1st January 2012

Mr Michael McGarvie                                               Your reference No LSC /09/2054

The Victoria Legal Services Commissioner

Dear Michael

Re: Complaint against Ian Bult and Russell Kennedy.

I am submitting to you new evidence regarding this matter. I understand that the Victorian Legal Services Commissioner has discretion to consider a complaint outside of the legislative six year time limit provided that evidence is compelling and has not been considered in any prior investigation. Refer: (Appendix 14).

I would therefore ask you to consider this new evidence and use your discretion to carry out a proper and thorough investigation of this matter.

Introduction.                                                                                                     In my own family`s situation we encountered a lawyer Ian Bult and Russell Kennedy who were assisted by Russell Kennedy`s resident wills and probate specialist Arthur Bolkas. Problems occurred from the outset in relation to communication. The lawyer Ian Bult and Russell Kennedy disagreed with the family and the family member executor on the interpretation of the will. Ian Bult stated he had in his possession a letter written to him by our mother six years prior to her death that supported his and Russell Kennedy’s interpretation of my mother’s will. When requested by the family and the family member executor for evidence he stated the letter was privileged and withheld it from the family. After six years the letter has finally been revealed to the family by Russell Kennedy. The contents of the letter prove that Ian Bult and Russell Kennedy lied about its contents to the children of my mother and used that lie to bully and intimidate the family member executor not to join in the probate of the will. My mother specifically stated to them in her letter that they as lawyers act in conjunction with my daughter. Instead they set up a dispute with her that was based upon a lie that they knew could not be verified and because she refused to agree with their fabrication they then intimidated a grieving daughter who is caring for her disabled daughter into a position of submission, a position that bought about a nervous breakdown that prevented her from carrying out her role as executor of my mother`s estate. They in fact betrayed the trust bestowed upon them by my mother and broke her will. The result was catastrophic for the internal family relationships and severely eroded the value of the estate available for the beneficiaries to the amount of at least $220,000 in excess fees and financial waste.

I have broken down my submission into three parts and I trust you will absorb their relevance.

Part one.

  • The facts that prove Ian Bult and the Melbourne law firm Russell Kennedy acted as lawyers and were dishonest in their communications about information they held that they claimed was privileged.
  • The implications of Russell Kennedy and Ian Bult`s dishonest behaviour as lawyers.

Part two

Outlines:

  • The law as is written in the parliamentary acts that pertain to this particular situation. Reference:

The Legal Professional Act 2004

The general principles of professional conduct.

The Trade Practices Act 1974.

The Wills Act 1997.

The Trustee Act 1958.

The Administration and probate act 1958.

The Victorian Charter of Human Rights.

  • The reasons why the government instruments, namely (The Law Institute of Victoria in the first instance, followed by The Victorian Ombudsman, The previous Attorney General and The Victorian Legal Services Commissioner) failed in their duty of care to protect my mother’s family from the criminal actions of Ian Bult, a lawyer and Russell Kennedy, a large law firm, having regard for the evidence (see attached Appendix 2. A letter from my mother dated 30 10 1998 to Ian Bult) and the laws as set out in the above acts

Part three:

The principals that formulate the laws by which we all live.

  • The existing evidence from the Victorian Ombudsman in his report on the Victorian Legal Services Commissioner highlights there were systemic failings within that office which impeded its role to protect the public from dishonest lawyers.
  • The evidence gathered from the Legal Services Commissioner`s round table discussion on ascendancy law that identifies the systemic problems between lawyers who act as executors and consumers of their services (beneficiaries, namely children of parents who have died) in this area of law.
  • The reasons why the Legal Services Commissioner has failed in his duty of care to my family and many other Victorian families by not carry out investigations about complaints concerning lawyers who are acting as lawyers and also acting as executors, in a dishonest (criminal) manner; because he states they are acting as executors and not lawyers.
  • The reasons why the Legal Services Commissioner needs to carry out a proper and thorough investigation of my complaint about Ian Bult and Russell Kennedy that is transparent.

Part one:

  • The facts that prove Ian Bult and the Melbourne law firm Russell Kennedy acted as lawyers and were dishonest in their communications about information they held that they claimed was privileged.
  • The implications of the Melbourne law firm Russell Kennedy and Ian Bult`s dishonest behaviour as lawyers.

I enclose a copy of the letter dated 30 10 98 that was written by my mother to the Melbourne law firm Russell Kennedy and Ian Bult whilst she was writing her last will (Appendix 2). This letter was withheld from the family member executor by the lawyer executor prior to the application for probate. The lawyer (Ian Bult and Russell Kennedy) stated that the contents of this letter justified their position into the interpretation of my mother`s will. This interpretation was different from that of my sister and of my mother`s other three children. The family interpretation was that my mother wished her four children to be treated equally under her will. Ian Bult interpreted my mother’s wishes that we not all be treated equally and that my share of the estate was to be held in a discretionary trust. Not a protective trust as was previously stated by the Law Institute of Victoria.

My sister ********, the nominated family executor asked Ian Bult and Russell Kennedy to see the letter and was refused on the grounds of legal client privilege. This placed the lawyer in a position of power over the family, a position which enabled him to be dishonest about the content of the letter to my mother’s children.  The difference of interpretation of the will by Ian Bult and the Melbourne law firm Russell Kennedy led to Ian Bult and Russell Kennedy strongly suggesting to my sister not to partake in her role in probate despite denying her access to this letter. Was this suggestion which was written on a Russell Kennedy letter head legal advice by a lawyer or was it legal advice written by an executor? If it was legal advice written by an executor who was not acting as a lawyer then why was it written on a law firm’s letter head and why it was not clearly specified that it was not advice written by a lawyer, a lawyer by the way who obtained his fiduciary position as executor because he is a lawyer?.

Fact 1.

In paragraph one of her letter to Ian Bult dated (30 10 1998) my mother states:

 

Dear Mr Bult

Thank you very much for your letter and thank you for staying on as executor in conjunction with my daughter. However if at any time you want to rethink this, let me know. – but I do need someone who understands the tax law and other laws relating to wills. It can be a minefield and none of my family are trained in this area so maybe you could suggest someone within your office.”

This part of the letter clearly defines the role of Ian Bult and the Melbourne law firm Russell Kennedy by their client my mother with regards to them managing her estate after her death as lawyers. My mother states that they are to act in conjunction with my sister because none of her family are familiar with taxation or wills law and that it can be a minefield.

My mother nominated her daughter ******* and the Victorian members of the Melbourne law firm Russell Kennedy as the executors to her will. Russell Kennedy is a law firm that practices law. The reason they were appointed as executors in conjunction with my sister, by my mother was because they were lawyers. As a consumer of their services she rightfully understood that because they were lawyers they are bound by a professional code of conduct in the form of the Legal Professional Act 2004 and could be trusted to care for her family after her death.  The law firm Russell Kennedy is in the business of providing legal work. All of the members of Russell Kennedy who have been named in the probate documents practice law.

The persons named as executors named In the Supreme Court of Victoria Probate Jurisdiction, in the will of Elizabeth Moira Hannigan are:

Ian Fraser Bult of Russell Kennedy named as executor with leave being reserved to (my sister) and the following members of Russell Kennedy. Michael Douglas Main, Bruce Wayne Kent,John Mathew James Corcoran, Michael William Gorton, Ross Fraser Hodges, Paul Gerard Gleeson, Wai Hwoon Low, Damian Thomas Neylon, Victor Anthony Harcourt, Robert Anthony Ewing, Colin Robert Taylor, Andrew James Sherman, Leslie Andrew Fox, Andrew Bruce Van Ingen, Julie Callea-Smyth,Leonard Adrian Warren, Sebastian John Michael Saccuzzo,Rohan David Harris and Rosemary Barbara South Gate.

My mother, as all of us, believed that lawyers are ethical people who are bound by a code of ethics, a code that permits consumers of their services to create relationships with them based upon trust. Placing a person who you have only known in a professional relationship as an executor in conjunction with your daughter to assist her family after her death was an ultimate act of trust by my mother in the legal profession. Trust not so much in the person as in the profession. A profession that she was married to (her husband, my father being the head of the legal studies department at Melbourne University for many years from 1965 until 1975) and that she believed she could trust. Due to the fiduciary nature of our mother`s relationship with Russell Kennedy, she as did her children and grandchildren believed that the Melbourne law firm Russell Kennedy and Ian Bult would be bound to act according to the professional conduct rules and that the law firm was vicariously responsible for any actions by its partners. Thus she felt safe in the knowledge that the Melbourne law firm Russell Kennedy and Ian Bult would act in a manner that would not harm her family.

Fact 2.

In paragraph three of the letter my mother states:

“Diarmid needs to be corrected to Diarmuid. I do not wish his ************to have any control of any money belonging to the children should that event arise.”

“The event”: being my death, either just prior or just after her death. She does not specify my death as it would be impossible for her to state that as with any other parent it would be one of the worst occurrences to befall a parent and since her second child was still-born, death was a subject that we avoided within our family.

That event is mentioned in the proceeding correspondence from Ian Bult and the Melbourne law firm Russell Kennedy dated 23 10 1998 “Clause (5b)“ (Appendix 1)  and letter dated (01 12 1998) “(1.1)” (Appendix 3) and in the draft copy of the will “(4b)“ (Appendix 4)  “That event’ is a singular event relating to the prior correspondence of Russell Kennedy and Ian Bult and is confirmed as the event of my death by Russell Kennedy and Ian Bult in further correspondence to my mother (Appendix 3).

Since “the event” my death had not occurred, please believe me I am alive. The only reason that the Melbourne law firm Russell Kennedy could have had, for refusing to honour my mother’s will and the wishes of her family was that she did not want my wife to have control over the money in the event of my death. Since I was not dead  I should have had control of the money to put to the benefit of my family as my mother would have wished.

The reason the Melbourne law firm Russell Kennedy and Ian Bult have used to claim their position is a false reason and is a dishonest portrayal of my mother’s will.

.Fact 3.

The contents of my mother`s letter were dishonestly misrepresented by Ian Bult and the Melbourne law firm Russell Kennedy to my mother`s nominated executor and to her children. This action by Ian Bult and the Melbourne law firm Russell Kennedy can be construed as deliberate, so as they could create a dispute over the will and force a part four application under the family provisions act. This process would have allowed the Melbourne law firm Russell Kennedy and Ian Bult to become involved in legal litigation that would have cost the estate an estimated sum of $200,000 in legal fees.

The first instance of this dishonest behaviour by the Melbourne law firm Russell Kennedy and Ian Bult occurred when my sister ********, her husband ********, my sister *******, her husband ******* and my brother ******* attended a meeting at Russell Kennedy to discuss the contents of the will and how my share could be dealt with. Prior to this meeting with the Melbourne law firm Russell Kennedy and my siblings an agreement through our interpretation and understanding of our mothers true wishes had been reached between ourselves that my share would be transferred to me and we would all be treated equally as our mother desired. The meeting was also attended by Ian Bult and another lawyer from the Melbourne law firm Russell Kennedy; Arthur Bolkas. At the meeting the family put the proposition to Ian Bult that my share of the estate under the will had been placed into a discretionary trust to protect it from my trustees in bankruptcy if that event arose and which is stated by Ian Bult to my mother in correspondence to her dated 23 10 1998 section 5 (Appendix 1). The family stated that I had never been a bankrupt or had or would be in a position that I could be in danger of being a bankrupt and thus I should receive my share of the estate in an equal proportion to my mother’s other children. Mr Ian Bult and the Melbourne law firm Russell Kennedy stated there were other reasons as to why the discretionary trust was to be set up according to my mother’s will and inferred during prolonged discussion that Ian Bult did not believe this was our mother`s wishes and that he had evidence in the form of prior communications which supported his view.

My sister ******** who is a trained psychologist and ******* a medical practitioner explained to Ian Bult how destructive his view was and that it was an imperative for our long term family cohesion that my mother’s children be treated equally under the will.

Mr Ian Bult explained to the family members the high costs of a legal dispute if things were not done his way.

Who was representing who and who was acting as a lawyer during the meeting between my mother’s family and Ian Bult and the Melbourne law firm Russell Kennedy? To any member of the community, unfamiliar with this situation, but being aware of the wishes set out by my mother in her letter to Ian Bult and after reading her will, Ian Bult and Arthur Bolkas would both be seen as acting as lawyer`s. I E. Ian Bult was seen as my mother`s ex lawyer a senior partner of the Melbourne law firm Russell Kennedy and Arthur Bolkas the wills expert from Russell Kennedy who were there to help my mother`s family through this stressful time in their lives.

A member of the public when better informed would think that Arthur Bolkas an employee of the Melbourne law firm Russell Kennedy and a certified wills expert would have been considered to be acting for the estate and therefore acting for both Ian Bult and my sister. If he was only acting for Ian Bult he still would have a fiduciary duty of care to his profession and to his firm to prevent any dishonest representations to occur from Ian Bult and he would also have a duty of care to discover if any dishonest representations had occurred by viewing any evidence that was at hand.

Neither Arthur Bolkas nor Ian Bult made it clear to any person at that meeting who was representing who. Therefore Russell Kennedy were at that time acting as lawyers in a bipartisan role and were giving paid advice to my mother’s family.

The lawyer Arthur Bolkas would have needed to be privy to the other information (the contents of the letter)  to be able to offer balanced advice in this situation and would have been obligated as a lawyer and as a lawyer acting in a fiduciary position to ensure that any communications that he was aware of that were dishonest were exposed to all parties.

The “evidence” that there were other reasons, implied by Ian Bult and the Melbourne law firm Russell Kennedy was contained within the letter that Ian Bult and Russell Kennedy kept hidden from my mother`s children. Since the only reason that I should not have received my 25% of my mother’s estate was in the event of my death, the Melbourne law firm Russell Kennedy dishonestly represented my mother’s wishes to her children because there were no reasons as to why the estate should not have been distributed equally amongst my mother’s four children. The letter clarifies Russell Kennedy and Ian Bult’s dishonest conduct.

The letter states:

  • “Dear Mr Bult

Thank you very much for your letter and thank you for staying on as executor in conjunction with my daughter. However if at any time you want to rethink this, let me know. – but I do need someone who understands the tax law and other laws relating to wills. It can be a minefield and none of my family are trained in this area so maybe you could suggest someone within your office.”

  • “Diarmid needs to be corrected to Diarmuid. I do not wish ******** to have any control of any money belonging to the children should that event arise.”

Fact 4.

The two letters from my sister ******* to Ian Bult dated 06 08 2004 (Appendix 5) and 12 09 2004 (Appendix 10) show the confusion caused to her during her grieving period for her mother by Ian Bult and Russell Kennedy`s sophistry. In her letter dated 12 09 2004 she addresses three points. Clearly ********** has obtained this information from Ian Bult and the Melbourne law firm Russell Kennedy and clearly once the letter to Ian Bult is read and understood, they have dishonestly represented it. The fact that she refers to my mother having a good will and a bad will are manifestations of Ian Bult and Russell Kennedy`s dishonest communications of our mother to her children. The dishonest communication by Ian Bult and the Melbourne law firm Russell Kennedy created an analysis of our mother by her children that was negative and in fact denigrated my mother in the eyes of her children just after her death. This action by Ian Bult and the Melbourne law firm Russell Kennedy when in a fiducially relationship is evil. It is an intrusion on the sanctity of my dead mother`s soul. A mother who did everything possible to ensure her family would go through the tragedy of her death with the minimum of disturbance. She appointed all of the living members of the Melbourne law firm Russell Kennedy to advise her daughter and her family with any issues pertaining to wills law and tax law. The law firm appointed Ian Bult a senior partner in the firm, who unfortunately is a skilled sophist, who lied to her family about her wishes. Even worse she appointed a law firm who must of known of Ian Bult`s dishonest behaviour and had not implemented a management plan to prevent this behaviour in order to protect its clients from sophistry.

After a great deal of wasted communication between my mother’s children and lawyers it became apparent that the Melbourne law firm Russell Kennedy and Ian Bult were basing their decision on the contents of a letter written six years prior to our mother`s death. They were in fact basing their decision based upon the statement contained in this letter that my mother did not want ******** to have control of the trust funds in that event (The event being my death) and that after my death if there were any funds left over they were to go to my children thus terminating clause 4a of the will and taking her will to clause 4b. Since I was alive the event of my death did not apply and was not another reason as dishonestly stated and concealed by the Melbourne law firm Russell Kennedy and Ian Bult from my mother’s children who would have if privy to the same information been able to detect the deception by the Melbourne law firm Russell Kennedy and Ian Bult.

Fact 5.

My sister ****** requested a copy of this letter from Ian Bult in the presence of Arthur Bolkas and was advised that they could not show her the letter on the grounds of legal client privilege. (Appendix 6)

Fact 6.

In a letter dated 31 08 2004 paragraph 4 (Appendix 8)  to my sister ********* where Ian Bult of the Melbourne law firm Russell Kennedy strongly suggests to her to renounce probate of the will he also states.

  • “If necessary, our client is prepared to once again explain why your mother did not want Diarmuid to receive one quarter share of her estate absolutely.”   Ian Bult and Russell Kennedy then wrote a letter to my sister *******  31/08/2004 Ref (Appendix 5). The tone and language contained within this letter is extremely intimidating and is indicative of how the Melbourne law firm Russell Kennedy and Ian Bult used bullying tactics against my mother`s nominated executor and her other children so as to gain control of the estate.

I have copied the relevant sections of this letter for you to read.

“Our attention was drawn to the fourth paragraph in the letter from Juliano Furletti and Scott which clearly states that you have indicated to Diarmuid that you are prepared to exercise your discretion under clause 4 of the will to pay the entire trust fund to him. If this is correct, we are concerned that you are expressing views that place you in conflict with the clear intention and purpose of the trust created in clause 4 of the will.

We have as you know explained at length your mothers reasoning in establishing the trust in clause 4 of her will. If necessary our client is prepared to once again explain why your mother did not want Diarmuid to receive a one quarter share of her estate absolutely.

If however you are unconvinced of the need for the trust or feel unable to carry out its terms we strongly suggest that you renounce probate of the will.

The partners of the Melbourne law firm Russell Kennedy have resolved to apply for a grant of probate of your mother`s will with leave reserved to them to come in and prove the will at any time. Our client believes it is necessary to lodge an application for a grant of probate as soon as possible so that the executors can commence to administer the estate.

Please let us know within 10 days of the date of this letter whether you will join our client in an application for a grant of probate of your mother`s will.”   

Analysis of this letter:

Let us analyse this letter sentence by sentence so as you are clear as to why it is an intimidating and hostile letter that was used by Ian Bult and Russell Kennedy to bully my sister the only named executor on the will. Remember Ian Bult and the Melbourne law firm Russell Kennedy are the only ones who have access to the letter that Ian Bult and Russell Kennedy are lying about.

“ If this is correct, we are concerned that you are expressing views that place you in conflict with the clear intention and purpose of the trust created in clause 4 of the will.”

This statement is hostile to my sister as it was based upon an act of deceit by Ian Bult and the Melbourne law firm Russell Kennedy. My sister had no conflict with my mother’s intentions. In fact it was Ian Bult and the Melbourne law firm Russell Kennedy who had the conflict based on their own lies. To state to a grieving daughter who is also caring for her two children and who was now in a position of caring for her mother’s family, that she is in conflict with her mother`s will, based upon a dishonest interpretation of a letter that only the accuser had access to, is a repugnant act and is a complete breach of Ian Bult`s and Russell Kennedy`s fiduciary duty.

“We have as you know explained at length your mothers reasoning in establishing the trust in clause 4 of her will. If necessary our client is prepared to once again explain why your mother did not want Diarmuid to receive a one quarter share of her estate absolutely.”

The explanations given at length by Ian Bult and the Melbourne law firm Russell Kennedy were based upon a lie, a lie which Ian Bult and Russell Kennedy could conceal from my sister by the use of their power as lawyers claiming legal client privilege. Since they knew it was a lie they knew my sister could not agree with them but they have reinforced the lie as if it were the truth in the above statement so as to bully and intimidate her from her role as the family nominated executor.

“If however you are unconvinced of the need for the trust or feel unable to carry out its terms we strongly suggest that you renounce probate of the will.”

This statement is where Ian Bult and the Melbourne law firm Russell Kennedy using their power and the lie they have conceived, to intimidate and bully my sister, my mother`s nominated family member executor to renounce probate of the will.

“The partners of the Melbourne law firm Russell Kennedy have resolved to apply for a grant of probate of your mother`s will with leave reserved to them to come in and prove the will at any time. Our client believes it is necessary to lodge an application for a grant of probate as soon as possible so that the executors can commence to administer the estate.”

Again the statement is intimidating. Now she feels alone as all of the partners of the Melbourne law firm Russell Kennedy have sided with Ian Bult and their firm Russell Kennedy to perpetuate the lie and destroy her mother’s will. The statement is intimidating because it brings in other people who have legal authority; after all we are now talking with all of the partners of the Melbourne law firm Russell Kennedy. There is also a tone of urgency placed upon my sister to make a decision when there was no urgency.

“Please let us know within 10 days of the date of this letter whether you will join our client in an application for a grant of probate of your mother`s will.”

The ten day time limit shows the intention of Ian Bult and the Melbourne law firm Russell Kennedy to drive my sister out of the estate, which was the final act of the bullying and intimidation in this communication, communication that was based upon a lie, and even worse, a lie that knowingly could be concealed by Ian Bult and Russell Kennedy, the liars themselves.

In mid-August of 2004 I approached a lawyer John Pavlidies of Juliano Furletti and Scott for legal assistance.

During the correspondence between Russell Kennedy – Ian Bult and my lawyer; Russell Kennedy – Ian Bult presented the contents of the letter dishonestly on a number of occasions, as follows:

Fact 7.

  • In response to a letter dated 25 08 2004 (Appendix 7) from my lawyers to the Melbourne law firm Russell Kennedy ref letter 31 08 2004 (Appendix 9) from Russell Kennedy to my lawyers ref paragraph 3

“Finally, you are incorrect to assume that the deceased`s only reason for creating the trust was to   protect your client from creditors.”

Fact 8.

  • Refer letter 29 09 2004 (Appendix12) from the Melbourne law firm Russell Kennedy to my lawyer paragraph 2:

“The deceased chose to draw clause 4 of her will in the terms in which she did, and the suggestion by her children that it be paid directly to Diarmuid or to his family trust would if implemented, clearly be a breach of the terms of the trust set out in clause 4 of the will and would be quite contrary to the deceased intentions.”

Fact 9.

  • Refer letter 28 10 2004 (Appendix 13) from the Melbourne law firm Russell Kennedy to my lawyers paragraph 3:

“However if the Ethics Committee decides that the deceased intentions with regard to the creation of the trust in clause 4 of her will is any way relevant to their consideration of the issue of whether our firm has a conflict of interest in continuing to act for our client we will provide them with a letter from the deceased to our client which clearly establishes that the deceased intended the creation of a discretionary trust for the benefit of your client and the other beneficiaries named therein and that her reason for creating the trust was not limited to a concern to protect your client from creditors.”

The Melbourne law firm Russell Kennedy and Ian Bult were asked to present this letter from my mother by all of her children on many occasions. They continually concealed this letter from everybody on the grounds of legal client privilege and were thereby able to conceal the true wishes of my mother.

This action by the Melbourne law firm Russell Kennedy and Ian Bult is:

  1. A complete breach of the trust placed in them by my mother to act as lawyers in conjunction with my sister in helping my mother`s family through the minefield of wills and taxation law.
  1. Dishonest conduct that misled and deceived my mother`s family.
  2. A criminal act of fraud by the Melbourne law firm Russell Kennedy and Ian Bult upon my mother`s will that could only benefit themselves through increased legal fees against the estate.
  3. A criminal act by a lawyer and law firm against a deceased persons estate is unethical, brings the legal profession into disrepute as it erodes the trust between the community and the legal profession which is against the public interest. It is also a breach of inheritance rights, family rights and human rights.

The criminal act committed by the Melbourne law firm Russell Kennedy and Ian Bult is of a far higher order than a criminal act conducted by a common thief, as the communities ultimate trust in the day to day practices of legal professionals and law firms is an imperative for “The Rule of Law” to function. We have seen how seriously the law regards this breach of trust by members of its own profession, exemplified in the case of Justice Enfield.  All he did was lie to a court over a speeding fine that would have lost the state about $150, a victimless crime. I doubt  that lying about who was driving a car that was speeding has as serious ramifications for any victims or for the reputation of the legal profession as does the actions of Ian Bult and Russell Kennedy when they lied to the children and grandchildren of the deceased about their mother and grandmother`s will. The costs alone to my mother’s family exceeds $2.0 million dollars, has destroyed the interfamily relations and imposed immense psychological damage upon a large group of people.

If lawyers who are entrusted to manage the affairs of a deceased person break the trust by lying about the contents of documents that they hold from the deceased and claim legal client privilege over them, they are in fact committing perjury. The privilege is given to lawyers by the court and they are honoured by the court to tell the truth. They are not permitted to lie about the contents of the documents and because the Melbourne law firm Russell Kennedy and Ian Bult have lied to my mother`s family about the content of the documents they held under the privilege, a privilege granted by the court to them acting as lawyer, they are therefore bound by the court not to misrepresent the truth, they have in fact committed an act of perjury.

Perjury is an act that is taken extremely seriously by the courts because if people lie it becomes very difficult to ascertain the truth and for the rule of law to function the community at large expects that lawyers who hold their trust as a necessary function of law are governed by ethics that prevent them from lying.

When lawyer`s such as Russell Kennedy and Ian Bult do lie when they are in the position of utmost trust (a position when the client is dead and cannot intervene) they bring their profession into disrepute by the wider community. Once the trust is broken between the wider community and the legal profession, who are the working instruments of the rule of law, particularly when dealing with inheritance which is a component of family rights and human rights; the fundamental principles, from which our civilized contemporary democratic society has evolved, are threatened.

The breach of trust and the misleading and deceptive conduct carried out by the Melbourne law firm Russell Kennedy and Ian Bult have:

  1. Irreparably split my mother`s family against her wishes. The unnecessary psychological pain that has been inflicted upon her children and grandchildren for the past seven years through the lies created by the Melbourne law firm Russell Kennedy and Ian Bult pertaining to her will, has had devastating and permanent effects upon the interfamily relationships of a first generation Australian family. A family that prior to her death was functioning in a positive and amicable light. Healthy interpersonal family relationships are essential for healthy human development. A migrant family is particularly vulnerable to a complete breakdown in these relationships as they are isolated from extended family networks that are living in their country of origin. Thus it is essential for family development that the distribution of the estate of the first generation is managed without disharmony as my mother did everything within her power to achieve. Inflicting physical pain through violence is a criminal act. Psychological pain can have far more damaging effects upon people than physical violence and the infliction of psychological pain without reason by a person (who is in a position of unquestionable power, being a lawyer or a law firm which they have obtained through a commonly perceived trust) upon another human being can also be interpreted as a criminal act of violence.
  2. Cost my mother`s children a great deal of money. This includes:

At least $70,000 in unnecessary legal fees.                                                   $35,000 on uncollected rent.                                                                             $100,000 in interest foregone.                                                                         $70,000 in losses due to the Melbourne law firm Russell Kennedy and Ian Bult`s dishonest conduct and mismanagement of the trust funds that they gained control of through a dishonest act.                                   $700,000 in loss of financial opportunity by denying me my whole share of the estate.                                                                                     $800,000 in loss of earnings capacity due to the time consuming nature of rectifying the  actions of the Melbourne law firm Russell Kennedy and Ian Bult.

A total of $1,670,000 not including an unspecified amount for the psychological violence   meted out by Ian Bult and the Melbourne law firm Russell Kennedyupon my mother`s family through their dishonest conduct.

Part two

Outlines:

  • The law as is written in the parliamentary acts that pertain to this particular situation. Ref:

The Legal Professional Act 2004

The general principles of professional conduct.

The Trade Practices Act 1974.

The Wills Act 1997.

The Trustee Act 1958.

The Administration and probate act 1958.

CharterOfHumanRightsandResponsibilities

  • The reasons why the government instruments, namely (The Victorian Legal Services Commissioner, The Attorney General and the Victorian Ombudsman) have failed in their duty of care to protect my mother’s family from the criminal actions of Ian Bult, a lawyer and Russell Kennedy, a large law firm, having regard for the evidence (see attached Appendix 2. A letter from my mother dated 30 10 1998 to Ian Bult) and the laws as set out in the above acts.

The law as it is interpreted by the Ethics Committee, the Law Institute of Victoria, the Legal Services Ombudsman, the Legal Services Commissioner, the Attorney General and the Victorian Ombudsman.

  1. Lawyers who act as executors even though they are lawyers working for a law firm that has been nominated by the deceased are not bound by the legal professional Act of 2004 because even though they are lawyers they are acting as executors.
  2. Lawyers who are in private practice are not bound by the Victorian Charter of Human Rights.
  3. Legal professional Act of 2004.section 2.10. Summary dismissal of complaints

The Commissioner may dismiss a complaint if-

  • further details are not given, or the details of the complaint or further details are not verified, as

required by the Commissioner  under section 4.2.9; or

(b)  the complaint is vexatious, misconceived, frivolous or lacking in substance; or

(c)  the conduct complained about has been the subject of a previous complaint that has been   dismissed; or

(d)  the conduct complained about is the subject of another complaint; or

(e)  the complaint is not one that the Commissioner has power to deal with;

or

(f)  in the case of a disciplinary complaint, the Commissioner, having considered the complaint, forms the view that the complaint requires no further investigation.

Vexatious: Definition

A legal action instituted without sufficient grounds to cause annoyance or embarrassment to the defendant.

Misconceived: Definition

Faulty or wrongly planned or based.

Frivolous: Definition

Not serious or sensible in content, attitude or behaviour, silly. Unworthy of serious or sensible treatment.

Substance:

The tangible matter of which a thing consists.

The Law Institute of Victoria, the Legal Services Ombudsman, the Victorian Legal Services Commissioner, and The Victorian Ombudsman have dismissed my complaint regarding the Melbourne law firm Russell Kennedy and Ian Bult, claiming  they are acting as executors and not lawyers. Because they were able to dismiss my complaint on these grounds they did not even investigate the complaint and were able to obfuscate their responsibilities by finding a legal loop hole. If they had investigated the complaint they would have obtained the letter. They would then have been able to ascertain that the Melbourne law firm Russell Kennedy and Ian Bult were lying about my mother`s wishes and about the role that they had been asked to perform as lawyers acting in conjunction with my sister and have in fact breached their fiduciary  duty to my mother and to her family.

Any of these bodies would then have been able to identify that Ian Bult and the Melbourne law firm Russell Kennedy were breaching section 4.4.4 c (i), c(iii) of the Legal Professional Act 2004.

4.4.4 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct

Without limiting section 4.4.2 or 4.4.3, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct—

  • conduct consisting of a contravention of this Act, the regulations or the legal

profession rules;

(b)      charging of excessive legal costs in connection with the practice of law;

(c)   conduct in respect of which there is a finding of guilt for—

(i)  a serious offence; or

(ii) a tax offence; or

(iii) an offence involving dishonesty;

By reading The Legal Professional Rules one can see that Ian Bult and the Melbourne law firm Russell Kennedy have ignored them by being dishonest about the contents of the letter that they maintained they had a right to hold under privilege.

GENERAL PRINCIPLES OF PROFESSIONAL CONDUCT

(A) Object of Rules

The object of these rules is to ensure that each practitioner:

(i) acts in accordance with the general principles of professional conduct;

(ii) discharges that practitioner’s obligations in relation to the administration of justice; and

(iii) supplies to clients legal services of the highest standard unaffected by self-interest.

(B) Serving the interests of Justice and complying with the Law

A practitioner must not, in the course of engaging in legal practice, engage in, or assist, conduct which is:

(i) dishonest or otherwise discreditable to a practitioner;

(ii) prejudicial to the administration of justice; or

(iii) likely to diminish public confidence in the legal profession or in the administration of justice or otherwise bring the legal profession into disrepute.

 (C) Reading down of rules

If, but for this rule, any provision of the foregoing rules or any other rule would be inconsistent with the general principles stated in section 64 of the Act the provision or rule shall be construed so that it is consistent with such general principles.

Professional Conduct and Practice Rules 2005

RELATIONS WITH CLIENTS

Practitioners should serve their clients competently and diligently. They should be acutely aware of the fiduciary nature of their relationship with their clients, and always deal with their clients fairly, free of the influence of any interest which may conflict with a client’s best interests. Practitioners should maintain the confidentiality of their clients’ affairs, but give their clients the benefit of all information relevant to their clients’ affairs of which they have knowledge. Practitioners should not, in the service of their clients, engage in, or assist, conduct that is calculated to defeat the interests of justice or that is otherwise in breach of the law.

  1. Duty to Client

1.1 Honesty and Confidentiality

A practitioner must, in the course of engaging in legal practice, act honestly and fairly in clients’ best interests and maintain clients’ confidences.

RELATIONS WITH OTHER PRACTITIONERS

In all of their dealings with other practitioners, practitioners should act with honesty, fairness and courtesy, and adhere faithfully to their undertakings, in order to transact lawfully and competently the business which they undertake for their clients in a manner that is consistent with the public interest.

LEGAL PRACTICE

A practitioner is endowed by law with considerable privileges, including exclusive entitlement to appear in some courts and tribunals, exclusive entitlement to conduct some transactions and draw some documents, and special protection against disclosure of client confidences. These privileges require that the community has confidence that a practitioner must at all times be fit to enjoy those privileges. A practitioner ought also to act in ways which uphold the system of administration of justice in relation to which those privileges are conferred.

By Ian Bult and the Melbourne law firm Russell Kennedy ignoring the legal professional rules and acting in a dishonest manner to my mother’s family they then breach the following sections of the Legal Professional Act of 2004.

2.7.43           Conflicts of interest

2.7.46             Application of legal profession rules

2.7.51             Undue influence

3.2.17            Binding nature of legal profession rules

3.2.21             Law practice or practitioner must provide information                            and documents

4.4.4              Conduct capable of constituting unsatisfactory                                           professional conduct or professional  misconduct

If the office of Legal Services Commissioner had investigated the complaint they would have through their powers been able to read the letter and been able to discover that Ian Bult and the Melbourne law firm Russell Kennedy were in fact engaging in dishonest conduct and were also engaging in misleading and deceptive conduct. The misleading and deceptive conduct is created because they were appointed as lawyers by my mother to assist her family with her affairs after her death, because they are lawyers. This is very clear from the will and the letter that the client expected them as lawyers not to be dishonest and not to engage in dishonest conduct by lying to her children about her communications with them as lawyers and to be governed by whatever legal acts govern the behaviour of lawyers when they practice law. At no time during the contract that my mother had with the Melbourne law firm Russell Kennedy did they ever explain to her that when they acted as executors they were not acting as lawyers and were not subject to the requirements of the legal professional act 2004 or were exempt from legal practice rules or that they would lie to her children about the contents of a letter she had written to them six years prior to her death so as they could extract a large sum of money from the estate whilst simultaneously destroying the inter family relationships between her children that she had worked for most of her life to nurture as a mother does.

The claim by the Legal Services Commissioner that my complaint was dismissed under section 4.2.10 b of the Legal Professional Act 2004 is without basis.

The complaint was neither, vexatious, misconceived, frivolous or lacking in substance, apart from the substance of the letter that was concealed by the Melbourne law firm Russell Kennedy and Ian Bult, so as to hide their crime.

Vexatious: A complaint about a lawyer and a legal firm who have hidden the wishes of a deceased parent from her children is not vexatious. It is a request to a responsible authority to intervene in an action that is criminal. The fact that it is made against both the senior principal of a very well respected, influential and trusted law firm and the law firm; does not in itself make the complaint vexatious. The fact that the law firm has members who sit, or have sat on the human rights committee, the legal services board and hold executive positions on the Law Institute of Victoria and are also named in the probate of my mother’s will does not make the complaint vexatious. A complaint bought against a lawyer and a law firm that has distressed a person and their family does not make the complaint vexatious.

Misconceived: The complaint against the Melbourne law firm Russell Kennedy and Ian Bult contained hard evidence and a well-documented account of the basis behind the complaint in the form of a statutory declaration by my sister, a letter from my sister, two letters written to my mother by Mr Ian Bult when forming her will.

The only missing evidence was the letter written to Ian Bult by my mother dated 30 10 1998.

Frivolous: A complaint about criminal activity concerning the activities of a lawyer and a law firm in their management of a parent’s deceased estate is extremely serious as it is an abuse of inheritance rights, family rights and ultimately the human rights of all living family members. It is not a frivolous matter.

Lacking in substance: The substance contained in the complaint was substantial and should have been enough to alert the Legal Services Commissioner of the need to utilise its powers of investigation so as to obtain the substance of the letter and prevent any further abuse of my mother’s family`s human rights by Ian Bult and the Melbourne law firm Russell Kennedy.

The particular substance being that my mother nominated Ian Bult and the Melbourne law firm Russell Kennedy as executors to act as lawyers in conjunction with my sister. It was thus that she the client defined their role as lawyers even though they were executors and they should therefore be bound by The Legal Professional Act of 2004 to act as lawyers and to act in an ethical manner.

The fact that the Melbourne law firm Russell Kennedy dishonestly presented the contents of a letter that they possessed and that they were only privy too, to my sister and my mother’s children and to my own lawyer and the Ethics Committee as specified in part one whilst defending their claim that there was no conflict of interest in acting for their nominated executor Mr Ian Bult breaches Russell Kennedy`s fiduciary obligations as lawyers under the Legal Professional Act 2004 since they were acting on a dishonest presumption that they were aware of.

The fact that the Melbourne law firm Russell Kennedy being aware of the dishonest representation of the evidence that they held and were concealing from the family, still allowed Mr Ian Bult,  a senior partner in the firm to place undue influence on the family member executor to renounce her position of executor of the will because she disagreed with Ian Bult and his lies, breaches Russell Kennedy`s fiduciary obligations as lawyers under the Legal Professional Act 2004, since they were acting on a dishonest presumption that they were aware of and were nominated as executor under the will to act as lawyers in conjunction with.

The fact that the Melbourne law firm Russell Kennedy being aware of the dishonest representation of the evidence that they held and were concealing from the family still allowed Mr Ian Bult a senior partner in the firm to create and continue a dispute that would only benefit the Melbourne law firm Russell Kennedy and Ian Bult in greater fees and charges against the estate breaches, Russell Kennedy`s fiduciary obligations as lawyers under the Legal Professional Act 2004, since they were acting on a dishonest presumption that they were aware of and simultaneously were serving  their own interests.

These actions along with the actual letter and a truthful interpretation of its contents by my mother’s children make both Ian Bult and the Melbourne law firm Russell Kennedy and all of its named members accountable under the legal professional act of 2004.     Please refer to:

2.7.19 Extension of vicarious liability relating to failure to account, pay or deliver and dishonesty to incorporated legal practices

The definition of vicarious being as follows:

A vicarious liability can be defined as the liability created by an action or non-action by a person, working on behalf of him when he is responsible for all the action or inaction of such person within the limits of their association. So when an employee or worker causes a loss to somebody in the normal course of his duty then the employer will be responsible for such loss.

The unfortunate truth of the matter is.  If The Law Institute of Victoria in the first instant had investigated my complaint without bias to Ian Bult and the Melbourne law firm Russell Kennedy, a lot less damage to my mother’s family would have occurred. The same applies to my complaints to The Victorian Legal Ombudsman and later to The Victorian Legal Services Commissioner who were provided with ample evidence in which to launch an investigation and obtain the key to the deception. The Legal Services Commissioner`s office chose not to pursue the complaint because Ian Bult was acting as an executor. They did not even consider that he was also acting as a lawyer or that somewhere along the line Russell Kennedy were acting as lawyers..

The claim by the Legal Services Commissioner`s office that they were unable to investigate complaints against lawyers who are acting as executors because they are executors and not lawyers is a furphy and is in fact an abuse of human rights, inheritance rights, and family rights.

I trust that with this new evidence (which should have been made freely available to my mother’s family by Russell Kennedy and Ian Bult six years ago), the Legal Services Commissioner can go forward and investigate my complaints against Ian Bult and the Melbourne law firm Russell Kennedy, utilising trained staff and proper procedures in a transparent way so as we can all be satisfied that procedure has been followed without incurring any bias in favour of the legal fraternity.

The dishonesty of Ian Bult and the Melbourne law firm Russell Kennedy in their communications to my mother’s children and grandchildren created a trust that in fact was not based upon the testator’s wishes. My mother clearly states to Ian Bult in her letter that he or another lawyer from the Melbourne law firm Russell Kennedy is to act in conjunction with my sister as discretionary trustees of my share of the discretionary trust. My sister based upon her relationship with my mother and my mother’s family, her own family had decided it was my mother’s wish for us all to be treated equally and that the provisions of the discretionary trust as set out in her will was to cater for the provision of protecting my share from any creditors that may attack the asset if it were to be exposed to any trustees that I had in bankruptcy. Refer (Appendix 1 point 5)  Since I did not have any financial threats, my sister along with all of my mother’s children agreed that there were no other reasons as to why I should not receive my inheritance in the same manner as everybody else.

It was only the Melbourne law firm Russell Kennedy and Ian Bult, through their dishonest portrayal of the contents of the letter that suggested there was any other reason. The Melbourne law firm Russell Kennedy and Ian Bult broke the contract of the will by dishonestly misrepresenting my mother`s wishes that were contained in the letter that they claimed privilege over to her children and to her daughter, the other executor named in the will. By failing to show a copy of this letter they failed to have its contents honestly exposed to the family. The dishonest communications by the Melbourne law firm Russell Kennedy and Ian Bult led to the formation of a discretionary trust with the members of the Melbourne law firm Russell Kennedy including Ian Bult being the nominated trustees and with my sister renouncing her probate of the will. This discretionary trust and how the trustee became empowered were based upon dishonest conduct by Ian Bult and the Melbourne law firm Russell Kennedy which led to the breaking of their own contractual obligations under the will.

The discretionary trust that Ian Bult and the Melbourne law firm Russell Kennedy has set up lost $70,000 in value. $83,500 in funds was invested into the stock market approximately four years ago and now has a value of $41,000 less $4,000 owed to the Melbourne law firm Russell Kennedy in legal fees. If the $85,500 had been invested in interest bearing bank deposits it would now be worth about $110,000 hence the loss of $70,000 in value.

The Melbourne law firm Russell Kennedy and Ian Bult have breached the Legal Professional Act 2004 sections:

3.3.17 Trust money subject to specific powers

3.3.21 Deficiency in trust account

Since the Melbourne law firm Russell Kennedy and Ian Bult obtained their powers as trustees by breaching their fiduciary duty to my mother and to her will by dishonestly portraying her wishes, they in fact have no power to act as trustees. The Melbourne law firm Russell Kennedy has set up an illegitimate trust that they are running that was set up under a dishonest premise.

The dishonest conduct by Ian Bult and the Melbourne law firm Russell Kennedy also breach the Trade Practices Act 1974, the Wills Act 1997 , the Trustee Act 1958  and the Administration and probate act 1958.  They also breach the CharterOfHumanRightsandResponsibilities

Part three:

The principals that formulate the laws by which we all live by.

  • The existing evidence from the Victorian Ombudsman in his report on the Victorian Legal Services Commissioner highlights there were systemic failings within that office which impeded its role to protect the public from dishonest lawyers.
  • The evidence gathered from the Legal Services Commissioner`s round table discussion on ascendancy law that identifies the systemic problems between lawyers who act as executors and consumers of their services (beneficiaries, namely children of parents who have died) in this area of law.
  • The reasons why the Legal Services Commissioner has failed in his duty of care to my family and many other Victorian families by not carry out investigations about complaints concerning lawyers who are acting as lawyers and also acting as executors, in a dishonest (criminal) manner; because he states they are acting as executors and not lawyers.
  • The reasons why the Legal Services Commissioner needs to carry out a proper and thorough investigation of my complaint about Ian Bult and Russell Kennedy that is transparent.

The relevant principals that formulate the laws by which we all live by are defined by The CharterOfHumanRightsandResponsibilities as I set out for you in my previous letter and are guided by our ethics as a community.

Ethical: Definition: In accordance with the principals of conduct that are considered correct.  Especially those of a given profession.

Ethic: Definition:   A moral principle or set of moral principles held by an individual or a group.

Ethics: Definition: The philosophical study of the moral value of human conduct and of the rules and principles   that ought to govern it. A social, religious or civil code of behaviour considered correct. Especially that of a particular group, professional, or individual

These principals are also referred to in the relevant government acts already referred to, in particular the distain for dishonest behaviour and misleading and deceptive conduct.

Dishonest behaviour coupled with misleading and deceptive conduct is unethical behaviour and goes against the moral principles expected of the legal profession by the wider society. Particularly when a member of the legal profession is given a fiduciary position of trust to act as an executor of a person`s will because the person giving that trust knows they will not be there when the trustee exerts their power. When that power is abused through dishonesty to obtain financial gain it:

  • is an abuse of Inheritance rights, family rights and ultimately human rights.
  • brings the legal profession into disrepute by undermining the trust the community has in it.
  • undermines the very fabric of the rule of law that allows us to live in a civilised community
  • attacks the core component of our society which is the family unit

Our contemporary democratic society has allowed us to create structures to ensure these very principles are not destroyed by criminals. The Victorian Ombudsman and The Victorian Legal Services Commissioner are examples of such structures. In the Victorian Ombudsman`s own motion report on the Legal Services Commissioner he states the following:

“The role of the Legal Services Commissioner is to protect both consumers of legal services and the public interest in the proper administration of justice. The Legal Services Commissioner has the power to address complaints made against Victorian legal practitioners to ensure that they acted within the confines of the law, with appropriate ethical standards and with deference to their professional position.”

In your reply to my letter dated 23 06 2011

“Breaches of my mother’s family`s human rights by the Commissioner.”

You state you have dismissed my complaint of human rights abuses by the Victorian Legal Services Commissioner on the grounds that the human rights abuses were committed by a lawyer and a law firm who are lawyers in private practice who are not bound by the Charter Of Human Rights and Responsibilities.”

In a contemporary democratic society our government has set up authorities who protect its citizens from abuse by others who are in a position of power as a result of their privileged position. The Legal Services Commissioner is one of those authorities.

The Victorian Charter of Human Rights, the definition of ethical behaviour, the own motion report on the   Victorian Legal Services Commissioner, the round table discussion on succession law 2010 held by the Victorian Legal Services Commissioner all identify a very serious problem, a problem that has created a significant number of complaints relating to lawyers who are acting in succession law. The systemic issues identified by the round table discussion are all issues that I raised in my complaint to the Legal Services Commissioner.

The operation of the office of the Legal Services Commissioner was of such concern that it generated over 90 complaints to your office and led to your own motion report. A report that found there were systemic failings within the Legal Services Commissioner`s office, a report that contains 28 recommendations on how to address those failings.

The Legal Services Commissioner received over 1000 complaints about lawyers who were acting in succession law from 2006 to 2009. Many of those complaints were not investigated properly by the Victorian Legal Services Commissioner as has been stated in your report.

“My investigation identified a lack of understanding by staff of the Legal Services Commissioner’s statutory powers and a restricted skills-set to conduct investigations. The Legal Services Commissioner’s investigators showed limited knowledge of the basic techniques of investigative processes. Case files lacked:

  • investigation plans
    • thorough and professional approaches to gathering evidence
    • follow-up on serious allegations
    • substantiating documents such as practitioners’ files
    • timely conclusions
    • verification of practitioners’ responses
    • reasons for decisions.”

CJRGRoundtablediscussion28May2012transcripthas identified the following areas as systemic concern. During the course of the Round Table, participants were asked to identify any areas of concern they may have had with probate and estate matters. The range of issues raised included the following:

  • emotions and family disputes
  • delay
  • communication problems
  • elder abuse
  • legal costs
  • the quality of wills
  • problems with executors
  • solicitor executors.

Considering the damage that is done to families within our community when inheritance rights are abused by lawyers, which constitutes systemic human rights abuse, the community would expect the Legal Services Commissioner to take such complaints very seriously and put in place systems to ensure the complaints are thoroughly investigated. As an engineer I am aware that to solve a problem one has to carry out a thorough investigation, we call it searching for information, so as to define a problem and then find solutions to solve the problem. In the case of the abuse of inheritance rights by lawyers the Legal Services Commissioner has in many instances failed to investigate the complaints at all because lawyers who act as executors are not bound by the Legal Professional Act 2004 and are not bound by the Charter Of Human Rights and Responsibilities

This has allowed some lawyers to perpetuate criminal acts and human rights abuses against families of deceased parents. The Legal Services Commissioner`s failure to act against this systemic human rights abuse is in itself an abuse of human rights. A regulator when it becomes aware of a systemic human rights abuse by the profession it is regulating has obligations back to the purpose of its office which bind it to act. It is an ethical requirement and is one that is assumed by the citizens of our contemporary state.

In my own case I have now provided you with substance. Substance that proves a well-respected lawyer (Ian Bult) of a well-respected law firm (Russell Kennedy) can lie to the children of a deceased parent and create a massive amount of emotional and financial damage to a family just so as they could create a dispute that would earn them a few dollars. Hardly believable but true.

Considering the level of the breach of trust that has occurred by the Melbourne law firm Russell Kennedy and Ian Bult and their standing within the legal fraternity I urge you and your office to use your discretion based upon this new and compelling evidence to Investigate my complaint in a thorough, transparent and professional manner as it is particularly serious and would help to identify where the root causes of the problem arose and thus ways to prevent it ever occurring to another Victorian family.

I would be grateful to assist your office in any way possible to progress this most important and fundamental issue that effects many Victorian families.

Yours Sincerely

Diarmuid Hannigan.

 Definition: Sophistry

In modern usage, sophism, sophist and sophistry are derogatory terms. A sophism is taken as a specious argument used for deception. It might be crafted to appear logical while actually representing a falsehood or it might use obscure words and complicated sentence constructions in order to intimidate the opponent into agreement out of fear of feeling foolish. Other techniques include manipulating the opponents prejudices and emotions to overcome their logical facilities.

Response to complaint 3

From The Victorian Legal Services Commissioner.

 

This is the response from The Victorian Legal Services Commissioner after being supplied irrefutable evidence that Ian Bult of the Melbourne law firm Russell Kennedy lied to the children of their mother about her final wishes and hid the evidence.

The response from the Victorian Legal Services Commissioner is conclusive evidence that this office supports the legal fraternity even when its members like Ian Bult of the Melbourne law firm Russell Kennedy commit crimes against a family when placed in a position of the highest trust.

The inaction by this regulator of lawyers is a reflection upon how badly Australian laws regard the importance of the family structure within Australian Society.

It is indicative of a nation whose laws have been built on Terra Nullius that allowed the destruction of Indigenous Culture that was followed by the theft of their children “The Stolen Generation”. After which we as a nation experienced the horror of forced and institutionalised adoptions. The horror and atrocities continue today in all of our courts but more so within the family court structure where the legal profession pit partners who are at their most vulnerable against each other in order to feed upon what little assets they may have collected to pay for their exorbitant fees without remaining accountable to a sole while the judges sit back and allow the horror to go on.

 

victorian legal services commissioner

To The Victorian Legal Services Commissioner.

This letter points out to The Victorian Legal Services Commissioner that Arthur Bolkas, Russell Kennedy`s wills expert sat in a room when Ian Bult lied to my mother`s children about her final wishes and did not lift a finger to stop Mr Bult`s crime against my mother`s wishes. 

 

Diarmuid Hannigan                                                                                     236 Smith Street Collingwood. Victoria 306603 94195044 charada@mira,net                                                                Sunday 29th  January 2012

To Mr Michael McGarvie                                                                             Your reference No LSC /09/2054                                                                        The Victorian Legal Services Commissioner

Dear Michael

Re: Complaint against Ian Bult and the Melbourne law firm Russell Kennedy. Please note my complaint is against both Russell Kennedy and Ian Bult not Ian Bult of the Melbourne law firm Russell Kennedy. Your error in this statement clearly shows that you have not considered the matter of the new evidence in light of the actions of the law firm Russell Kennedy and have missed the implications of this new evidence in relation to the law firm Russell Kennedy`s actions in this matter.

In response to your letter of 25 01 2012. You state.

“In this case, I note that you have provided me with a copy of your late mother’s letter to Mr Bult dated 30 October 1998. Whilst the letter itself is a document that I have not previously had an opportunity to consider, the contents of same do not provide me with any new information which would allow me to re-open the complaint.”

Could you please explain to me why the contents of the letter which prove Ian Bult and the Melbourne law firm Russell Kennedy lied to the children of the deceased including my mother’s nominated executor ******** and therefore acted in a dishonest manner and breached their fiduciary duty is insufficient reason for you to investigate my complaint in a transparent and thorough manner.

Yours Sincerely

Diarmuid Hannigan

From The Victorian Legal Services Commissioner.

This letter from the Victorian Legal Services Commissioner contains a lie. He states that he can only investigate individual lawyers. He cannot investigate Ian Bult because he is acting as an executor and lawyers who act as executors are not bound by the Legal Professional Act of 2004 mainly because Australian laws that are built upon Terra Nullius and the destruction of a society do not acknowledge the importance of family as the key and most important component of as healthy society. 

Below is the part of the Legal Professional Act of 2004 that shows that the Victorian Legal Services Commissioner does have the power to investigate law firms.  

Legal Profession Act 2004 – SECT 4.2.2.

Civil complaints and disputes

4.2.2. Civil complaints and disputes

(1) A civil complaint is a complaint about conduct to which this Chapter applies, to the extent that the complaint involves a civil dispute.

(2) A civil dispute is any of the following-

   (a)  a dispute (costs dispute) in relation to legal costs not exceeding $25000 in respect of any one matter-                                                         (i)  between a law practice or an Australian legal practitioner and a    person who is charged with those costs or is liable to pay those costs (other than under a court or tribunal order for costs); or                (ii) between a law practice or an Australian legal practitioner and a  beneficiary under a will or trust in relation to which the law        practice or practitioner has provided legal services in respect of        which those costs are charged;                                                                        (b)  a claim that a person has suffered pecuniary losses as a result of an act or omission by a law practice or an Australian legal practitioner in the provision of legal services to the person, other than loss in respect of which a claim lies against the Fidelity Fund;   (c)  any other genuine dispute between a person and a law practice or an Australian legal practitioner arising out of, or in relation to, the  provision of legal services to the person by the law practice or      practitioner.                                                                                                      (3) A civil complaint may be made about the conduct of a law practice or an Australian legal practitioner.

VICTORIAN LEGAL SERVICES COMMISSIONER

Your ref:                                                                                                               9/330 Collins St Melbourne VIC 3000                                                        GPO Box 492 Melbourne Vic 3001 DX 185 Melbourne                          Our ref: LSC/09/2054                                                                                    t 1300 796 344 (local call) t 03 9679 8001 f 03 9679                             8101Russell Daily      www.lsc.vic.gov.au ABN 66 489 344 31020 February 2012

Private and Confidential

Mr Diarmuid Hannigan                                                                                236 Smith Street COLLINGWOOD VIC 3066

Dear Mr Hannigan

Complaint about Mr Ian Bult of Russell Kennedy

Thank you for your letter dated 29 January 2012, the contents of which are noted.

Under the Legal Profession Act 2004, I can only investigate individual lawyers, not law firms.

This matter has been the subject of review already and having been dealt with, the issues cannot be debated any further and the complaint cannot be reopened. I do not agree that the evidence proves what you suggest.

As I mentioned in my letter of 25 January 2012, if you are not satisfied with this decision, you are entitled to take the issue up further with the Victorian Ombudsman. This office will cooperate with Ombudsman Victoria but cannot assist you further. Any further material from you may not be specifically responded to by this office.

 

Yours’sincerely

 

Delegate of the               –

Legal Services Commissioner

To The Victorian Legal Services Commissioner.

Diarmuid Hannigan                                                                                           236 Smith Street                                                                            Collingwood. Victoria 3066                                                                              03 94195044 charada@mira,net                                                        Sunday 26th  February 2012

To Mr Michael McGarvie                                                                            Your reference No LSC /09/2054

The Victorian Legal Services Commissioner

Dear Michael

In response to your letter 20th February 2012

Re: Complaint against Ian Bult and the members of the Melbourne law firm Russell Kennedy at the time of my mother`s death and Arthur Bolkas who was employed by Russell Kennedy.

The Members of the Melbourne law firm Russell Kennedy at the time of my mother`s death as specified in the probate documents submitted to the supreme court of Victoria were: Ian Fraser Bult, Michael Douglas Main, Bruce Wayne Kent, John Mathew James Corcoran, Michael William Gorton, Ross Fraser Hodges, Paul Gerard Gleeson, Wai Hwoon Low, Damian Thomas Neylon, Victor Anthony Harcourt, Robert Anthony Ewing, Colin Robert Taylor, Andrew James Sherman, Leslie Andrew Fox, Andrew Bruce Van Ingen, Julie Callea-Smyth, Leonard Adrian Warren, Michael John Redfern, Sebastian John Michael Saccuzzo, Rohan David Harris and Rosemary Barbara South Gate.

Please note my complaint is against both the members of the Melbourne law firm Russell Kennedy and also Arthur Bolkas who was employed by Russell Kennedy and Ian Bult not just Ian Bult of Russell Kennedy.

You have stated that The Legal Services Commissioner can only investigate individual lawyers not law firms. So I have given you the names of the individual lawyers. I apologise for my inadvertent error.

In my letter to you dated 01 01 2012 pg 4 and 5 I indicate to you where Ian Bult, the members of the Melbourne law firm Russell Kennedy and Arthur Bolkas have a problem with regards to your office and breaching of the Legal Professional Act of 2004.

It appears as if we have a failure in communication mainly because your office has not as yet provided the facility of a face to face meeting and all communication has been carried out in writing.

I will attempt to re communicate so as you may be able to understand where the problems lie.

Part one.

  1. A meeting was held between Ian Bult, my sister , her husband , my other sister, her husband and my brother also attended by Arthur Bolkas an employee of the Melbourne law firm Russell Kennedy at the offices of the Melbourne law firm Russell Kennedy to discuss my share of the estate.
  • At that time my sister was the family nominated executor.
  • At that time the members of the Melbourne law firm Russell Kennedy were the other possible nominated executors.
  • At that time Ian Bult was representing the nominated executors of Russell Kennedy and Arthur Bolkas the employee of the Melbourne law firm Russell Kennedy was representing all of the executors of the will including my sister and also the estate.

An issue occurred when Ian Bult referred to the contents contained within a letter my mother had written to him whilst he was my mother’s lawyer which set him against the family. He stated that there were other reasons as to why he could not treat my inheritance in the same way as my brothers and sisters because of the information contained in the letter. When the letter finally came to light (The new evidence) it clearly shows that the only reason I should be treated differently pertained to my death, whereby my share of the estate was to go to my children. Since I am not dead this means that Ian Bult`s behaviour raises issues of breach of duty and misrepresentation.

Arthur Bolkas as Ian Bult’s, the members of the Melbourne law firm Russell Kennedy and my sister the other executor`s legal representative should have alerted all of the executors to the issues of breach of duty and misrepresentation, at that point in time since they were all of his clients. He did not notify my sister of the issues of breach of duty, deceit, misrepresentation, and false and misleading conduct made by Ian Bult.

Arthus Bolkas is an individual lawyer who was acting as a lawyer and was employed by the Melbourne law firm Russell Kennedy. This means that the partners of the Melbourne law firm Russell Kennedy are vicariously liable for Arthur Bolkas’s failure to notify his other client my sister of Ian Bult`s of breach of duty, and misrepresentation. Since the partners of the Melbourne law firm Russell Kennedy were all named as executors to my mother’s will their failure to ensure that one of their employees acted within the guidelines of the legal professional act of 2004 is a breach of their fiduciary duty to my mother and to her estate, in other words her family.

  1. My sister requested a copy of the letter that Ian Bult maintained he had in his possession but was refused on the grounds of legal client privilege. I gather that if she had taken up her position as executor after the granting of probate Ian Bult would have been obligated to provide her with a copy of the letter. This means that although she was the family nominated executor who had stepped into the shoes of my mother she was denied access to the information by the other executor on the grounds that she had not yet achieved the position of executor. Following that argument it would also mean that Ian Bult and the members of the Melbourne law firm Russell Kennedy had also not achieved the position of executor and were therefore not executors. If they were not executors at that time because, my sister was not an executor then they must have been lawyers.
  2. The letter that my sister requested from Ian Bult was in fact not privileged because when Paul Gleeson became the new trustee he released the letter or did he just make another error. The error of releasing privileged information without authority from the court.

Part 2

You state: “that you do not agree that the evidence proves what you suggest.”

Please can you state the reasons as to why you do not agree that the evidence and the facts I have provided do not prove:

  • that Ian Bult`s behaviour created issues of breach of duty and misrepresentation.
  • that Arthur Bolkas did not investigate the issues of breach of duty and misrepresentation on behalf of his other clients including my sister the family nominaed executor. Particularly when Arthur Bolkas was fully aware of the damage an unequal distribution of inheritance would do to the fabric of my mother’s estate and to the relationships between her children. I do not know if Arthur Bolkas had access to the letter but since it became an important issue in determining the direction of the estate as the lawyer acting in the interests of the estate I would have thought that if he were competent in his duties as a lawyer to the estate he would have at least read the letter. Since I am not privy to Russell Kennedy`s file I do not know what Arthur Bolkas did or did not do and that is the reason we have investigators as per your office of the Victorian Legal Services Commissioner so as we can discover whether or not lawyers are doing their jobs properly.
  • that Ian Bult and the members of the Melbourne law firm Russell Kennedy made a disastrous mistake in allowing Ian Bult to hide an important piece of information that would have helped to determine my mother’s wishes from her children under the pretext of legal client privilege, when in fact it was not privileged information.

Part 3

You have failed to address and explain the following as communicated to you in my letter of 29 01 2012 and as a member of the public I would appreciate a professionally composed response that addresses the issue of the evidence not the issue of law firms or lawyers who are acting as executors are not bound by the legal professional act. This question asks you why you have rejected the evidence.

In response to your letter of 25 01 2012. You state.

“In this case, I note that you have provided me with a copy of your late mother’s letter to Mr Bult dated 30 October 1998. Whilst the letter itself is a document that I have not previously had an opportunity to consider, the contents of same do not provide me with any new information which would allow me to re-open the complaint.”

Could you please explain to me why the contents of the letter which prove Ian Bult and the Melbourne law firm Russell Kennedy engaged in issues of breach of duty and misrepresentation to the children of the deceased including my mother’s nominated executor and therefore acted in a dishonest manner and breached their fiduciary duty is insufficient reason for you to investigate my complaint in a transparent and thorough manner?

I look forward to you reply.

Yours Sincerely

Diarmuid Hannigan

 

From The Victorian Legal Services Commissioner.

reply Victorian Legal Services Commissioner March 2012

 

To The Victorian Attorney General Robert Clark

Diarmuid Hannigan                                                                                           236 Smith Street                                                                            Collingwood. Victoria 3066                                                                              03 94195044 charada@mira,net                                                                      Saturday 14th April 2012

To The Attorney General

Robert Clark

Dear Robert.

Again I am writing to you regarding Victoria`s succession laws. As you are aware, both New South Wales and Victoria are currently reviewing their succession laws.

You are, I am no doubt aware of my own concerns regarding the accountability of Legal Practitioners who act as Executors.

These concerns and mechanism for a solution are explained in detail at the following Link: http://www.lawyersorgraverobbers.com/web/

Real life examples of this lack of accountability by some of these legal practitioners is one way of exposing the current flaws in our succession laws when it comes to protecting families from the predatory practices of some self-serving legal professionals.

wo page letter. The letter requests Ian Bult or another member of Russell Kennedy to act as executor`s in conjunction with my sister. The letter states that any remaining share of my inheritance will go to my four children equally if I die.  The letter expresses the desire of my mother to ensure her youngest son is provided with enough funds so as he can purchase a house to live in.

The letter does not contain any reasons as to why my share of the estate should have been treated any differently to any of my mother’s other children.

In response to your letter of 15 12 2012, Headed: Legal practitioners acting as executors.

I did as you suggested and included the new evidence of my complaint pertaining to Ian Bult and Russell Kennedy solicitors.

The new evidence was in the form of a letter written by my mother six years prior to her death that was concealed by Ian Bult and Russell Kennedy from her children after her death under the guise of legal client privilege.  Ian Bult and Russell Kennedy stated that the contents of this letter meant that my share of my mother’s estate should be treated differently from my brother and sisters. This information was used as the basis for creating a dispute between my sister the family named executor and Ian Bult and Russell Kennedy. My mother’s children including my sister the family named executor wanted us all to be treated equally as we maintained our mother would have wanted it to be.

The letter is a very simple, hand written, t

When provided with the new evidence the Victorian Legal Services Commissioner responded on  25 01 2012 by stating:

 “In this case, I note that you have provided me with a copy of your late mother’s letter to Mr Bult dated 30 October 1998. Whilst the letter itself is a document that I have not previously had an opportunity to consider, the contents of same do not provide me with any new information which would allow me to re-open the complaint.”

I responded in writing to The Victorian legal Services Commissioner on 29 01 2012 with a request to: “please explain to me why the contents of the letter which prove Ian Bult and Russell Kennedy lied to the children of the deceased including my mother’s nominated executor Grainne Darrer and therefore acted in a dishonest manner and breached their fiduciary duty is insufficient reason for you to investigate my complaint in a transparent and thorough manner.”

On the 20 02 2012 the Victorian Legal Services Commissioner responded by stating:

They were unable to investigate Law Firms and were only able to investigate individual lawyers.

The Victorian Legal Services Commissioner did not answer my question and did not give reasons as to why the new evidence would not permit him to investigate.

I responded in writing to The Victorian legal Services Commissioner on 26 02 2012.  I again asked The Victorian Legal Services Commissioner for an explanation:

“Could you please explain to me why the contents of the letter which prove Ian Bult and Russell Kennedy engaged in issues of breach of duty and misrepresentation to the children of the deceased including my mother’s nominated executor and therefore acted in a dishonest manner and breached their fiduciary duty is insufficient reason for you to investigate my complaint in a transparent and thorough manner?”

 On the 30 03 2012 the Victorian Legal Services Commissioner responded by stating:

“Whilst you continue to raise issues of the conduct of various practitioners at Russell Kennedy at the time of your mother’s death, I am unable to deal with this aspect as it does not amount to a disciplinary issue.”

Again the Victorian Legal Services Commissioner fails to answer the question about why the new evidence was insufficient to reopen the case.

Synopsis.

Unfortunately what all of this means is there is no protection for families by the legal regulator:

  • from legal professionals who make mistakes, mislead, misconstrue, or lie when acting as executors.
  • from lawyers such as Arthur Bolkas who when representing Ian Bult and the members of Russell Kennedy, was simultaneously also representing the family executor and should have been aware of any mistakes, misleading or misconstruction of information or lies told by Ian Bult the lawyer executor and who should have communicated those errors to his other client, the family nominated executor, my sister.

It means the only recourse for Victorian`s who suffer this abuse by members of the legal profession is to attempt to find resolution within the Supreme Court. This is a very expensive and time consuming venture that is fraught with problems and one that although an option, is not in reality feasible for most of us mere mortals.

Review of our Inheritance Laws.

I trust that you will incorporate my family`s experience within the review of Victorian Inheritance laws.

For more information relating to Australian Inheritance Law Reform please visit my web site. Link

http://www.lawyersorgraverobbers.com/web/

I would very happy to assist if you need further information.

Best Regards

Diarmuid Hannigan

 

 

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