Queensland Law Society

Legal Services Commissioner v CMA Ho [2017] QCAT 95

Legal Services Commissioner v CMA Ho [2017] QCAT 95

Catchwords

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – UNSATISFACTORY PROFESSIONAL CONDUCT

Executive Summary

The Respondent failed to maintain reasonable standards of competence and diligence in relation to executing an enduring power of attorney (Charge 1) and will (Charge 2) for his client.[1]

The Queensland Civil and Administrative Tribunal (‘the Tribunal’) ordered the Respondent to:

  1. be publicly reprimanded
  2. pay a sum of $2,000 within 30 days of the order[2]

Background Facts

The Respondent’s client had a mild intellectual disability[3], and lived in a co-dependent relationship with her mother who suffered from Parkinson’s disease.[4]

The Respondent was asked by the husband of the client’s sister (Sister A) to prepare an enduring power of attorney appointing Sister A as attorney, and to prepare a new will for the client appointing Sister A as trustee and executor.[5]

The Respondent was informed of his client’s intellectual disability and did not consult with his client prior to preparing these documents.[6]

The Respondent failed to:

  • consult his client alone
  • ask open-ended questions
  • conduct the interview pursuant to the Office of the Public Guardian’s ‘Guidelines for Witnessing Enduring Documents’ (Guidelines)
  • make any written record of the steps taken in assessing his client’s capacity
  • seek medical opinion verifying his client’s capacity to understand the nature and effect of the enduring power of attorney or the Will.[7]

In a subsequent matter brought by the client’s other sister (Sister B), the Tribunal found that the Respondent’s client lacked capacity to understand the nature and effect of the enduring power of attorney.[8]

Issue

The major issue that the Tribunal needed to deal with was whether in relation to the two Charges, the Respondent’s conduct amounted to unsatisfactory professional conduct.

Issues Discussed

In relation to both Charges, the Respondent’s omission to seek medical opinion verifying the client’s capacity amounted to unsatisfactory professional conduct. In ascertaining whether a solicitor should seek a medical opinion, the “steps which should be taken… will depend upon the particular circumstances of the case.”[9] A practitioner must take adequate steps to be satisfied that the client has sufficient capacity to execute the document and in that context understand the nature and effect of the document. A reliable form of communication is necessary to ensure that the client understands the instructions being given and is providing coherent instructions which the practitioner can rely upon. If the solicitor becomes concerned, they are expected to make a further enquiry.[10]

The Respondent, although informed of his client’s intellectual disability, never asked open-ended questions, and his client gave no response that suggested an understanding of the nature of the documents to be executed.[11] The Tribunal found that the Respondent “should have embarked on a higher level of enquiry”[12] and recommended obtaining a medical opinion.[13]

In relation to Charge 1, the Respondent’s failure to interview the client alone and in accordance with the Guidelines, amounted to unsatisfactory professional conduct.[14] Given that the Respondent had received instructions from a third party, he should have ensured that there was no undue influence.[15] The Respondent knew the client had an intellectual disability,[16] and thus could not have been satisfied that the client understood the nature and effect of the document.

In relation to both Charges, the Respondent’s failure to make a written record of the steps taken in assessing his client’s capacity amounted to unsatisfactory professional conduct.[17] This failure did not amount to professional misconduct because of its isolated incidence.[18] The Guidelines suggest it is prudent to make  such a record. A solicitor makes such a record in discharging their duty to the client if there is cause to be concerned. This is because questions of capacity are only decisively answered by a Court or the Tribunal and ultimately, such decision-making is assisted by reference to evidence based on accurate, contemporaneous records.[19]

There is no suggestion on the evidence that the Respondent obtained instructions from his client and a practitioner has a duty to appropriately seek, and act on, the client’s instructions. The comprehensive failure to fulfil this duty is unacceptable and falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.[20]

In deciding upon an appropriate sanction, the Tribunal found that the Respondent’s conduct was “more serious” than in Penny[21] and Given[22] and ordered that the Respondent:

  • be publicly reprimanded
  • pay the sum of $2,000 within 30 days of the date of this order.[23]

 

Harry Lee

Ethics Clerk

As approved by Grace van Baarle, Manager, Ethics Solicitor, QLS Ethics Centre



[1] Legal Services Commissioner v Ho [2017] QCAT 95, [1].

[2] Ibid [66].

[3] Ibid [4].

[4] Ibid [10]

[5] Ibid [5]-[8].

[6] Ibid [9]-[10].

[7] Ibid [14]-[18].

[8] Ibid [19]-[20].

[9] Ibid [27].

[10] Ibid [28].

[11] Ibid [29].

[12] Ibid [30].

[13] Ibid [31].

[14] Ibid [36], [41].

[15] Ibid [35]-[36].

[16] Ibid [40].

[17] Ibid [54].

[18] Ibid [53].

[19] Ibid [47].

[20] Ibid [51]-[52].

[21] Legal Services Commissioner v Penny [2015] QCAT 108.

[22] Legal Services Commissioner v Given [2015] QCAT 225.

[23] Legal Services Commissioner v Ho [2017] QCAT 95, [66].