Legal Profession Conduct Commissioner v Brook

The Legal Profession Conduct Commissioner appealed to the Supreme Court of South Australia against a penalty imposed by the Legal Practitioners Disciplinary Tribunal concerning a practitioner's conduct. The Commissioner sought to have the Tribunal's penalty set aside and, in its place, an order recommending disciplinary proceedings be commenced against the practitioner in the Supreme Court. The practitioner's unprofessional conduct involved preparing a will for an 86-year-old client, ZG, who was residing in a nursing home. Instructions for the will were taken solely from ZG's daughter, BJ, who claimed to have her mother's authority. The practitioner did not meet or speak with ZG directly to ascertain her wishes or testamentary capacity, nor did he confirm if ZG had made any prior wills.

The central legal issue before the Court was whether the practitioner's conduct in taking instructions for a will from a third party, without directly consulting the client or adequately verifying her capacity and wishes, constituted a serious departure from the expected standards of legal practice, warranting more severe disciplinary action than that imposed by the Tribunal. The Court was required to consider the adequacy of the practitioner's actions in light of established professional duties when preparing wills, particularly concerning vulnerable clients.

The Court reasoned that the practitioner's method of taking instructions was wholly inadequate. It applied the principles articulated in *The Estate of Tucker, Deceased*, which emphasise the importance of taking instructions directly from the testatrix, obtaining full information about her personal position, and directly addressing her capacity to make a will. The practitioner's acknowledgment that his conduct was unprofessional was noted, but the Court found the gravity of his actions necessitated a more stringent outcome.

Allowing the appeal, the Court set aside the penalty imposed by the Tribunal. The Court ordered that the practitioner's name be removed from the Roll of Practitioners, finding that his conduct over a significant period demonstrated a serious departure from the standards expected of legal practitioners.