Legal Practitioners Complaints Committee and Reyburn
[2005] WASAT 207
•19 AUGUST 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: LEGAL PRACTICE ACT 2003 (WA)
CITATION: LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and REYBURN [2005] WASAT 207
MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)
MS M CONNOR (MEMBER)
MR C EDMONDS SC (SENIOR SESSIONAL MEMBER)
HEARD: 19 JULY 2005
DELIVERED : 19 AUGUST 2005
FILE NO/S: VR 2 of 2004
BETWEEN: LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Applicant
AND
JOHN HENRY REYBURN
Respondent
Catchwords:
Professionals Disciplinary action Legal practitioner Failure to deliver enduring power of attorney to donee of power Acting in accordance with donor’s instructions Charging for work done in relation to request to produce Whether unprofessional conduct
Legislation:
Nil
Result:
Complaints dismissed
Category: B
Representation:
Counsel:
Applicant: Dr A Dickey QC
Respondent: Mr M D Cuerden
Solicitors:
Applicant: Law Complaints Officer
Respondent: Nicholson Clement
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal’s decision
The Legal Practitioners Complaints Committee alleged that Mr John Reyburn (the practitioner) was guilty of unprofessional conduct between about April to August 2003 in:
(1)Refusing to provide a copy of an enduring power of attorney that he had prepared to the donee of the power, upon her request; and
(2)Billing Mrs R (the principal under the power of attorney), in relation to J’s request, when he was not entitled to do so.
(The Tribunal has determined that the client should remain anonymous so as to preserve the confidentiality of her instructions to and dealings with her lawyer.)
The practitioner denied the allegation and contended that he conducted himself in accordance with specific instructions from his client, Mrs R, the donor of the power, and that he was entitled to charge for his services for performing those instructions.
The Tribunal has concluded that, whatever may have been the legal entitlements of the donee, the practitioner’s conduct in endeavouring to carry out his instructions does not amount to unprofessional conduct.
Background
The facts in this matter are largely not in dispute. They are disclosed in the documents comprising the hearing bundle and tendered as exhibit 1. Somewhat unusually, the practitioner did not give oral evidence.
In about May 2003 Mrs R saw the practitioner with a view to his preparing a power of attorney naming her daughters J (the complainant) and D as her attorneys. The practitioner’s notes of conference record that Mrs R would have preferred that D only be appointed but J "would not accept her decision to do so". The instructions therefore were that the power of attorney was not to be released to her daughter until (1) the practitioner was satisfied that "it was needed" (meaning until she had lost capacity to act for herself) and (2) the practitioner had contacted her other daughter D (who lived in Switzerland) and told her of J’s wish to collect the power of attorney. When the practitioner proposed that these conditions be put into the power of attorney, he was instructed not to do so as this "would inflame the situation with J".
The practitioner duly prepared an enduring power of attorney dated 19 May 2000 in standard form. It took effect immediately and was not subject to conditions. It was executed by Mrs R and, as required under the Guardianship and Administration Act, accepted by D and J by their each signing an acceptance. There was no evidence to suggest that a copy of the document was given to the attorneys. Equally there was nothing to suggest that J was made aware of the conditions imposed by Mrs R and external to the power of attorney.
The practitioner’s counsel sought to make something of the fact that there was no proof tendered as to the date on which J accepted the appointment. We do not think anything turns on this.
Some three years later, J asked the practitioner to give her the power of attorney. (There is a conflict as to whether the request was for the original, as claimed by the practitioner, or a copy, as claimed by the Complaints Committee. Again, nothing ultimately turns on this.) The practitioner says in his Answer that J had said that Mrs R had asked her to collect the document. The practitioner asked her to provide confirmation of the request.
On 29 April 2003, the practitioner received a letter apparently signed by Mrs R asking that he make available a copy of the power of attorney to J and D. Further, that should he have any concerns in that respect, he should contact J. On receipt of that letter (which must have been hand delivered), the practitioner on that day, visited Mrs R. This was in accordance with his initial instructions to satisfy himself as to her capacity. Amongst other things, his note of the visit records that she did not recognise the letter of 29 April and that she repeatedly did not recognise who he was.
Also upon receipt of the letter dated 29 April 2003 the practitioner spoke to J. He outlined his instructions. He obtained information as to where to contact D. The practitioner also spoke to the manager of the villas where Mrs R was staying with a view to establishing her capacity.
Shortly after that visit, the practitioner on 1 May 2003 wrote to J. In that letter he disclosed the substance of his instructions. He sought her assistance in locating D. He advised that in the course of his visit Mrs R did not recall discussing the matters the subject of her letter of 29 April. He therefore "wondered" whether it constituted her instructions to him.
Thereafter, he sought to locate D. He was not able to do so until 12 May. He passed on the request from J for a copy of the power of attorney.
On 26 May 2003 new solicitors acting for Mrs R, forwarded an authority signed by her asking that the practitioner forward to them the power of attorney.
On 10 June 2003 Mrs R wrote a further letter to the practitioner asking that she make her legal papers available for collection. They were collected on 12 June 2003.
On 29 August 2003 the practitioner sent a memorandum of his fees to Mrs R in the sum of $300.00. This covered the work outlined above for the period from 28 April to 12 June 2003.
The Complaint
The Complaints Committee’s starting premise is that as an attorney under the power of attorney, J was entitled to a copy of the document. When pressed by the Tribunal as to the time at which this right arose, senior counsel said that irrespective of whether the right arose earlier, it arose at the time of Mrs R’s incapacity. Further, his submission was that such incapacity was to be objectively determined and it was established by the contents of the practitioner’s note of 1 May 2003 as to Mrs R’s mental condition. The Complaints Committee’s position was that, irrespective of any instructions the practitioner may have had in relation to the delivery of the power of attorney, he was obliged to provide a copy to J at about this date.
The Complaints Committee further submits that given Mrs R’s incapacity at this time, the practitioner’s retainer necessarily terminated such that he was not entitled to undertake any work or charge any fees thereafter.
Determination
There are a number of difficulties with the case put forward by the Complaints Committee.
It may be accepted, as a general proposition, that an attorney who accepts appointment as such is entitled to a copy of the power of attorney. That follows from the attorney’s general obligation to comply with the principal’s instructions in the document. It may also be accepted as a general proposition that in the case of an enduring power of attorney, upon the principal’s incapacity the attorney would have a right to call for the document in order to act under it. That would suggest that the holder of the document has some reciprocal duty to produce it to the attorney.
In this case however, the attorney’s right to the document was affected by the principal’s instructions. The practitioner was under a duty to his client to not deliver the document to J except upon satisfaction of the conditions mentioned. When the request for the document was first made in late April 2003, the practitioner assiduously sought to comply with those instructions by visiting his client to determine her mental condition and contacting D.
It may be that the proper legal analysis is that in fact the principal changed her instructions by the letter of 29 April or by the correspondence on 26 May or on 10 June, by requiring the practitioner forthwith to deliver the document to J. But even in those circumstances in the light of what the practitioner had initially been told of the family relations, it does not seem unreasonable that the practitioner should satisfy himself that Mrs R did intend to change her initial instructions in that manner. There was some difficulty in him doing so given her difficulties with her memory. If the practitioner may be said to have been somewhat overcautious in acting on the new instructions, it being necessary for Mrs R to write three letters before he acceded to her request, we do not think this a matter which is within the province of unprofessional conduct.
Moreover, if as the Complaints Committee made clear its case rested on the duty to deliver the document arising upon Mrs R’s incapacity, it is not apparent to the Tribunal that this is established by the practitioner’s impression of her as recorded in his note of 1 May 2003. As Mr Reyburn’s counsel pointed out, subsequent to that visit Mrs R saw the new solicitors who arranged for her to sign the authority on 26 May 2003. That firm thought she was capable of giving instructions.
That finding also disposes of the second charge at least upon the basis of the automatic termination of the retainer upon her incapacity. And even if the termination were to be viewed as dating from the time Mrs R instructed new solicitors, the work which the practitioner did thereafter, and the modest fees charged, can be justified by his initial instructions and his concern to give effect to them. Indeed, it is possible to imagine circumstances where, notwithstanding the clear termination of a solicitor’s retainer, some outstanding work might properly be undertaken on behalf of the client.
Conclusion
The practitioner’s instructions in this matter revealed some difficulties in the family relationship. At the time when he was asked to produce the power of attorney to J, being alive to those difficulties, he was concerned to see that he acted in accordance with his instructions. Whatever the strict legal analysis of J’s right to the document, we do not think the practitioner can be criticised for his actions taken out of concern to ensure that the request was genuinely made, nor for charging the fee he did for so acting. We see nothing of the nature of unprofessional conduct in his actions. The charges will be dismissed.
I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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