Legal Services Commissioner v de Brenni
[2011] QCAT 340
•14 July 2011
| CITATION: | Legal Services Commissioner v de Brenni [2011] QCAT 340 |
| PARTIES: | Legal Services Commissioner (Applicant) |
| v | |
| Allan Raymond de Brenni (Respondent) |
| APPLICATION NUMBER: | OCR325-10 |
| MATTER TYPE: | Occupational Regulation Matters |
| HEARING DATE: | 15 June 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Assisted by: Mr Ken Horsley (Practitioner Panel Member) Dr Susan Dann (Lay Panel Member) |
| DELIVERED ON: | 14 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. That the respondent be publicly reprimanded. 2. That the respondent pay a pecuniary penalty of $1,000. 3. That within 21 days of this Order the respondent provide to the Legal Services Commission the name of a senior practitioner duly recognised by the Qld Law Society, who will undertake two six monthly audits of the respondent’s practice in the next 12 months. 4. That the respondent submit to the Legal Services Commissioner a report of the first audit within six months, and a second report in 12 months. 5. That the respondent pay the Commission’s costs fixed at $1,500. |
| CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – where the respondent was charged with three counts of failure to maintain a reasonable standard of competence and/or diligence in relation to his preparation and execution of a power of attorney document and his rendering of fees in circumstances in which he was not entitled to do so – where the respondent accepts that he is guilty of the charges and that they constitute unsatisfactory professional conduct – appropriate penalty Legal Profession Act2007, s 452 Legal Services Commissioner v Ford [2008] LPT 12, applied |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers, pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). The Tribunal met and considered the parties’ written submissions on 15 June 2011.
REASONS FOR DECISION
Three charges are brought against Mr de Brenni under s 452 of the Legal Profession Act 2007 (LPA): that he failed to maintain reasonable standards of competence and/or diligence in relation to the preparation and execution of an enduring power of attorney, and the revocation of an existing power of attorney whilst acting for a client, KM; that he also failed to maintain those standards in relation to the witnessing of a new power of attorney document; and, that in breach of his duty as a solicitor he acted inappropriately by rendering fees to KM in circumstances where he was not entitled to do so.
Mr de Brenni, an experienced solicitor with an otherwise unblemished record, accepts that he is guilty of these charges and that each of them constitutes unsatisfactory professional conduct (as that term is defined in the LPA). The case is, unfortunately, another example of the pitfalls which can surround the taking of instructions for the appointment of attorneys.[1]
[1] See Legal Services Commissioner v Ford [2008] LPT 12.
KM was elderly, and a permanent patient in an aged care facility. In 2003 she had appointed her son PM as her attorney for financial, personal and health matters. Shortly after her admission to the facility in December 2008 another relative contacted Mr de Brenni who then attended upon KM and took instructions from her in respect of the revocation of the earlier power of attorney to PM, and the preparation and execution of a new one. The new document appointed PM and CM (another son of KM) and Mr de Brenni as her attorneys. One of the witnesses to the new power of attorney was, however, Mr de Brenni’s spouse.
The solicitor did not know, and did not make sufficient or effective enquires to discover, that KM had previously been diagnosed with dementia and was a permanent inpatient in the aged care facility. Nor did he take appropriate notes of his consultation with KM, in accordance with the Office of the Adult Guardian’s ‘Capacity guidelines for witnesses of Enduring Powers of Attorney’.
Because the solicitor was, also, appointed as an attorney but allowed his wife to witness the document it was thereby rendered invalid through the operation of s 31 of the Powers of Attorney Act 1998. In view of the invalidity of the document the solicitor was not entitled to fees, and he acted inappropriately by rendering a bill.
Other material circumstances relating to the charges against Mr de Brenni include the fact that KM was 88 years old; that the request for his attendance was not made by her; that the appointee under the 2003 power of attorney, PM, was not present and had not apparently been consulted about the proposed changes; that the respondent had little information or knowledge in the way of medical evidence about KM’s condition, or the reasons for her residence in the aged care facility; that there was, in truth, no urgency to prepare a new document; and, that the solicitor’s enquiries were, as he admits, generally inadequate.
Relevantly, too, on 4 March 2009 the Guardianship and Administration Tribunal found that KM had lacked capacity to execute attorneyship documents in December 2008; and, because of tensions within the family, the Tribunal revoked all the documents executed at that time and, also, the earlier enduring power of attorney made in December 2003.
Mr de Brenni did make attempts to obtain information relevant to KM and her instructions. Before he interviewed KM he had tried to contact her doctors, without success; had spoken to a relative (who initially contacted him) who had not raised any issues or concerns about KM’s capacity; and, on arrival at the aged care facility, he had spoken to a nurse and told her that he was a solicitor; and, the nurse raised no issues about KM’s capacity or ability.
He failed, however, to discover that she was a permanent resident, or the relevant diagnosis of her mental condition. In light of her age, and circumstances, it was necessary and appropriate that the solicitor make specific enquiries about the client’s mental health status and his failure to do so constitutes unsatisfactory professional conduct.
[10] So, too, was his failure to comply with guidelines from the Adult Guardian. As Fryberg J observed in Legal Services Commissioner v Ford [2008] LPT 12, a practitioner’s failure to conduct appropriate enquires to achieve satisfaction, to the necessary level, that the client understands the legal effect of documents and is capable of executing them, or to interview the client in accordance with the guidelines, is conduct that falls short of the standard of competence and diligence that the public is entitled to expect from a reasonably competent practitioner.
[11] As to the witnessing of the document by the solicitor’s spouse, he says that occurred in circumstances where KM’s sons were apparently in attendance and were beginning to argue about the proposed changes and he (the solicitor) was distracted by that; but that, in any event, upon observing that his wife had witnessed the documents he concluded (wrongly, as he now accepts) that that would only invalidate his appointment, and not the entire document.
[12] Mr de Brenni is 64, and has been in practice since 1983. He has never previously been dealt with by disciplinary bodies. He says that, so soon as he became aware of the dispute within KM’s family, he contacted the Guardianship and Administration Tribunal and the Qld Law Society for guidance, and advice.
[13] Disciplinary penalties are not imposed, in this jurisdiction, as punishment but rather in the interests of protecting the community from unsuitable practitioners. This Tribunal looks, when determining penalty, to the protection of the public and the maintenance of proper professional standards.
[14] The Commissioner submits, and the solicitor accepts, that his conduct falls short of proper professional standards and the community ought to be protected from it but, in the circumstances prevailing here, it is appropriate to conclude that this was a momentary lapse by a senior, experienced solicitor and not one which demonstrates unfitness to practice.
[15] In Ford, which appears to have been the first case of this kind before the Legal Practice Tribunal (this Tribunal’s predecessor), it was said that a public reprimand was sufficient and no pecuniary penalty was necessary but the fact that no fine was imposed in that case
…would not and should not be taken in cases arising out of events after today to indicate that the Tribunal would, in future, take the same attitude. What is appropriate in the first case which is something of a test case is not appropriate in cases where subsequently practitioners have every opportunity to know what their obligations are and to know that they ought to fulfil them.[2]
[2] At 25.
[16] In light of those remarks, and because of the similar circumstances arising here, this Tribunal finds that it is appropriate to impose a fine in the order of $1,000.
[17] The Commissioner also submits, and the solicitor accepts, that supervision for a period of one year with reporting conditions is appropriate; and, that the solicitor should pay the Commissioner’s costs. Otherwise, in the Tribunal’s view, a public reprimand is also an appropriate and necessary sanction both for the sake of personal deterrent, and as a general reminder to practitioners about the need for care and attention in cases of this kind which, with the growth in the proportion of the population in the age range likely to require legal assistance in these areas, will increase.
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