Legal Services Commissioner v Comino

CITATION: Legal Services Commissioner v Comino [2011] QCAT 387

PARTIES:	Legal Services Commissioner (Applicant)
v
Luke Gregory Comino (Respondent)

APPLICATION NUMBER:   OCR016-11

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers, 18 July 2011

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President
Assisted by:
Mr M Woods
(Practitioner Panel Member)
Dr J Lamont
(Lay Panel Member)

DELIVERED ON: 11 August 2011

DELIVERED AT: Brisbane

ORDERS MADE:    

1.    Mr Comino is publicly reprimanded.

2.    He is ordered to pay a fine in the amount of $2,000 within 30 days.

3.    He is also ordered to pay the Commissioner’s costs fixed in the amount of $1,500 within 30 days.

CATCHWORDS: 

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – where the respondent was charged with failing to maintain a reasonable standard of competence and/or diligence in preparing and executing two enduring power of attorney documents – whether the conduct amounts to professional misconduct or unsatisfactory professional conduct – appropriate penalty

Legal Profession Act 2007, ss 418, 419

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498, cited
Legal Services Commissioner v de Brenni [2011] QCAT (14 July 2011), cited
Legal Services Commissioner v Ford [2008] LPT 12, cited
Legal Services Commissioner v Madden [2009] 1 Qd R 149, cited

APPEARANCES and REPRESENTATION (if any):

By consent, the matter was heard and determined by the Tribunal on the basis of written submissions from the parties under s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).  The members of the Tribunal met to consider those written submissions on 18 July 2011.

REASONS FOR DECISION

1. Mr Comino is a solicitor, admitted to practice in 1999 and now aged 48.  Prior to this proceeding he had not previously been dealt with by a disciplinary body, and had an unblemished professional record.

2. In February 2009 he was consulted by new clients, Mr and Mrs A and their daughter M, about the preparation and execution of enduring power of attorney documents, appointing M as their attorney.  The solicitor acted on those instructions.

3. As it turned out, however, Mr A had been diagnosed in the previous month with marked atrophic changes to his brain and Mrs A had been found, three months earlier, to have dementia of the Alzheimer’s type with behavioural disturbance.

4. The validity of the documents of attorneyship was, unsurprisingly, raised before QCAT’s predecessor, the former Guardianship and Administration Tribunal, in proceedings brought by P, a son of Mr and Mrs A, who sought orders from that Tribunal that he be appointed guardian and administrator of his parents’ affairs.  In the course of its decision the Tribunal found that both parents lacked the capacity to execute the enduring power of attorney documents in February 2009 which appointed M, and declared them invalid.

5. Mr Comino has been charged, by the Commissioner, with failing to maintain reasonable standards of competence and/or diligence in relation to the preparation and execution of…