A Gold Coast lawyer struck off in two states for ripping off the estates of elderly clients has walked free after being found guilty of defrauding an 87-year-old World War II refugee who survived the Nazi regime.
Former lawyer Tracey-Anne Smith, 50, received a three-year suspended sentence for taking $60,000 from the estate of Lydia Juss.
The sentence comes days after a successful application by the Queensland Legal Services Commission (QLSC) to have her struck off in both Queensland and New South Wales.
Today the Southport Magistrates Court was told that at the time of her offending Smith’s marriage “dissolved” and she had lost her career and income.
Her solicitor Cameron Browne said Smith had had a lengthy battle with anxiety and depression, and suffered from chronic post-traumatic stress disorder (PTSD).
Magistrate John McInnes described the offending as “out of character” and took into account Smith’s significant depression and anxiety.
“At the time of the offending, it is my finding that you were operating with an altered level of moral culpability,” Magistrate McInnes said.
“The offending looked at in isolation is serious because it involves the taking of money that was subject to trust by a person whose professional obligations made it particularly serious.”
Magistrate McInnes ruled that Smith did not have to pay any compensation.
The $60,000 she took from Ms Juss’s estate was reimbursed by the Queensland Law Society’s fidelity fund.
‘Guilty of professional misconduct for deceiving eight elderly clients’
Legal sources said the remainder of the $175,000 she dishonestly obtained from her elderly clients was also repaid out of the fidelity fund.
On 25 October, the Queensland Civil Administration Tribunal (QCAT) published its findings that Smith was guilty of professional misconduct for deceiving and defrauding eight elderly clients, including Ms Juss.
The disciplinary matter was brought before QCAT by the QLSC, which raised 12 charges of misconduct in 2018.
QCAT found Smith would get her clients to draw up their wills, which included recommending her firm handle the estate, and then appointed herself estate executor and/or power of attorney.
Smith was the sole practitioner in her firm Smith Legal Solutions, specialising in succession law.
She was admitted as a solicitor under her maiden name of Brewer in 1994.
Legal sources told the ABC she sought potential clients in nursing and retirement homes.
In its findings, QCAT said Smith’s misconduct included her manufacturing false invoices “thereby giving an air of legitimacy and charging grossly excessive fees”.
QCAT noted that, as part of its investigation, the QLSC appointed a costs assessor who found the amounts Smith charged her elderly clients for “work” exceeded a reasonable charge by 90 per cent and in some cases, she double charged for work already done.
It was also found that Smith failed to keep records or do invoices for work and that she transferred money from her clients’ trust accounts into her general account.
“The respondent accepts that this conduct was dishonest as she knew that her representation that the money was due and owing to her was untrue,” QCAT found.
QCAT found the earliest incident of misconduct occurred in 2012 and the “fraudulent taking of monies” over an approximate three-year period.
Smith’s involvement delayed dying wish
As revealed by ABC News in May, it was the actions of retired Queensland fraud detective Rod Shelton who helped expose Smith’s fraudulent activities.
Mr Shelton, who lived next door to Ms Juss and her husband Leo Artemeiff on the Gold Coast, was a trustee of Ms Juss’s estate.
His role in the estate meant that the QLSC could access the legal files of Ms Juss’s estate as Mr Shelton and that Smith could not use legal privilege to stop outside scrutiny of her activities.
Six of the 12 charges QLSC brought against Smith related to estate or power of attorney matters where she engaged in misconduct by failing to respond to matters or take appropriate action.
This included delaying the release of funds to pay for the headstone for Ms Juss and her husband – also a WWII refugee who had been imprisoned by the Nazis.
Smith continued to defraud the estate of $60,000 while ignoring repeated requests from Mr Shelton spanning almost two years.
He launched Supreme Court action in 2018.
Smith’s handling of Ms Juss’s estate also delayed her dying wish to donate to charities chosen by her late husband.
Outside of court, Mr Shelton said he was very disappointed that a solicitor in a position of trust betrayed her client and was able to commit fraud.
“There is still $25,000 Smith owes to Lydia’s estate which should be going to charity as per her will and wishes,” Mr Shelton told ABC News.
“She came to this country as a refugee from World War II and she deserved so much better than this.”
‘Serious dishonesty’
The QLSC action also accused Smith of transferring thousands of dollars from clients’ trust accounts to the general account without proper authority.
QCAT also found she dishonestly took more than $35,000 from an elderly client who died in 2018.
In another case, Smith invoiced herself for more than $42,000 in the months following a client’s death in 2017.
She also paid herself a further $35,000 for “management of affairs” of her client’s late wife’s estate, to which she had been appointed executor.
QCAT said the mitigation in Smith’s case included her cooperation with authorities and that she surrendered her practising certificate in 2018 and passed on the files to new lawyers.
“Through her solicitor she has apologised to her victims and the profession,” QCAT ruled.
“Despite these mitigating features it is evident that in a case of serious dishonesty in the discharge of the professional duty the practitioner must be struck off.”
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