Legal Services Commissioner v Comino
[2011] QCAT 387
•11 August 2011
| 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 |
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
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.
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.
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.
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.
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 the two attorney documents. He has been legally represented in these proceedings and the parties have filed a joint statement of agreed facts, and joint submissions on penalty.
The solicitor accepts that he failed to explain the terms of the attorney documents to Mr and Mrs A; did not conduct appropriate enquiries to satisfy himself that they understood the legal effect of the documents; did not conduct appropriate enquiries to satisfy himself that they were capable of executing them; did not seek any medical opinion or make any enquiries about their health notwithstanding that Mr A was 87, and Mrs A was 83 and that he had never previously met them, or acted for them; did not undertake an interview with them in accordance with the Office of the Adult Guardian’s ‘Capacity Guidelines for witnesses of enduring powers of attorney’; and, did not make a written record of the steps he took to assess their competence, including any questions and answers.
As this Tribunal has previously observed, it is common knowledge that the proportion of the population who may require legal assistance in the circumstances which arose here is increasing, and it is vital that legal practitioners understand their obligations and responsibilities to ensure that clients have the capacity to execute documents of this kind, and understand what they are doing.
It is also important, as Fryberg J observed in this Tribunal in Legal Services Commissioner v Ford [2008] LPT 12, that lawyers understand their obligations under the prevailing legislation and guidelines published by their professional association, and by the Adult Guardian.
This is the second case of this kind to come before the Tribunal in a relatively short period of time.[1] Here, as the solicitor properly admits, he should have:
§ Given the apparent age of the clients, and circumstances of the clients’ attendance upon him, made specific enquiries about their health;
§ Conducted appropriate enquiries to satisfy himself that they understood the legal effect of the documents;
§ Undertaken appropriate investigations to ensure they were capable of executing the documents;
§ Sought the opportunity to meet each of Mr and Mrs A alone, and recorded his questions of them and their responses;
§ Asked them ‘open-ended’ questions, in the nature of those suggested in the Guidelines; and,
§ Been more diligent in determining whether or not they revealed anything like forgetfulness of recent events and other possible indications of a lack of full capacity.
[1] Legal Services Commissioner v de Brenni [2011] QCAT (14 July 2011).
[10] Under the Legal Profession Act 2007 the solicitor’s misconduct with respect to both charges is to be assessed by reference to statutory definitions of unsatisfactory professional conduct and professional misconduct.[2]In determining whether a respondent is guilty of professional misconduct the question which will often be asked is whether the conduct violates or falls short, to a substantial degree, of the standard of professional conduct observed or approved by members of the profession of good repute and competency.[3]
[2] Defined in ss 418 and 419.
[3]Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 per Thomas J at 507.
[11] The Commissioner submits here that the solicitor’s conduct clearly falls within the definition of unsatisfactory professional conduct and is not so serious as to warrant categorisation under s 419, professional misconduct. The Tribunal agrees; while the conduct is regrettable it is neither so serious nor prolonged as to fall within the latter definition. It is also relevant that this practitioner has, previously, had an unblemished record.
[12] Disciplinary penalties are not imposed as a punishment but, rather, in the interests of protecting the community from unsuitable practitioners. In deciding what order it will make this Tribunal has regard, primarily, to the protection of the public and the maintenance of proper professional standards.[4]
[4] Legal Services Commissioner v Madden [2009] 1 Qd R 149 at 186.
[13] The Tribunal has had occasion to consider not dissimilar circumstances arising under the charges brought in the cases of Ford, and more recently de Brenni and, in each instance, has determined that the conduct does not demonstrate unfitness to practice but that both personal deterrence for the practitioner and general deterrence for other members of the profession (and the protection of the public) are satisfied by the imposition of an order involving a public reprimand, and a fine.
[14] Here the parties make a joint submission that the fine ought to be in the sum of $2,000. In the Tribunal’s view, that is appropriate. It is higher than the pecuniary penalty in de Brenni which was, itself, an increase on the penalty in Ford, where no fine had been imposed. In de Brenni, however, it was also thought necessary to impose a form of supervision upon the practitioner but that was by agreement between the parties, and was not thought to be necessary in Ford. It has not been suggested here and the Tribunal is not persuaded that it is necessary, or appropriate.
[15] The respondent has also agreed to pay the applicant’s costs, fixed at $1,500.
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