Legal Services Commissioner v Given - [2015] QCAT 225

CITATION: Legal Services Commissioner v Given [2015] QCAT 225

PARTIES: Legal Services Commissioner
(Applicant/Appellant)

v

Ross Alexander Given
(Respondent)

APPLICATION NUMBER: OCR030-13

MATTER TYPE: Occupational regulation matters

HEARING DATE: 5 September 2014

HEARD AT: Brisbane

DECISION OF: Justice David Thomas, President
Assisted by:
Mr Ken Horsley (Practitioner Panel Member)
Dr Julian Lamont (Lay Panel Member)

DELIVERED ON: 12 June 2015

DELIVERED AT: Brisbane

ORDER MADE:
1.   The Respondent be publicly reprimanded.

2.   A penalty in the sum of $1,500.00 be imposed.

3.   The Respondent is to pay the Applicant’s costs assessed on the Supreme Court Scale.

4.   The claimant, Ms Elizabeth Bywater, is to file four copies in the Tribunal and serve one copy upon the Respondent of any evidence and submissions upon which she intends to rely in making a claim for compensation pursuant to the provisions of the Legal Profession Act 2007 by 4.00pm on 3 July 2015.

5.    The Respondent is to file four copies in the Tribunal and serve one copy upon the claimant, Ms Elizabeth Bywater, of all evidence and submissions upon which the Respondent intends to rely in relation to the claim for compensation by 4.00pm on 31 July 2015.

CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – SOLICITOR AND CLIENT – DEALING WITH CLIENT - where respondent faces 3 charges for failure to maintain reasonable standards of competence and diligence in preparation and execution of an enduring power of attorney and two wills – where alleged that the respondent was or should have been aware that the client may not have capacity to execute the power of attorney and the wills – where elderly client had suffered a stroke and had speech difficulties – where respondent failed to take adequate notes of interview with the client – where respondent met with client in presence of relative – where respondent failed to seek any medical opinion or information verifying the client’s capacity – whether respondent failed to conduct appropriate enquiries to satisfy himself that the client understood the nature and effect of an enduring power of attorney and will –whether unsatisfactory professional conduct or misconduct

Legal Profession Act 2007 (Qld) ss 418, 419, 452, 456(4)(b), 462(1), 465
Powers of Attorney Act 1998 (Qld) s 41

Easter v Griffith & Ors (1995) 217 ALR 284
Legal Services Commissioner v Bone [2013] QCAT 550
Legal Services Commissioner v Comino [2011] QCAT 387
Legal Services Commissioner v De Brenni [2011] QCAT 340
Legal Services Commissioner v Ford [2008] LPT 12
Legal Services Commissioner v McLelland [2006] LPT 13

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr David Kent QC instructed by the Legal Services Commissioner

RESPONDENT: Mr James Bell QC with T Pincus
REASONS FOR DECISION
The charges
[1]Three charges are brought by the Legal Services Commissioner against Mr Ross Given under s 452 of the Legal Profession Act 2007 (Qld) (the Act). It is alleged that Mr Given was involved in conduct which constituted professional misconduct and/or unsatisfactory professional conduct in that:
Charge 1:…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Legal Services Commissioner v Given

Details

AGLC: Legal Services Commissioner v Given [2015] QCAT 225
Case: [2015] QCAT 225
Decision Date: 12 June 2015

CaseChat Overview and Summary

In this case, the Legal Services Commissioner brought proceedings against Given, a legal practitioner, in relation to the preparation and execution of an enduring power of attorney and two wills. The Commissioner alleged that Given had failed to maintain reasonable standards of competence and diligence in his dealings with the client, who had suffered a stroke and exhibited speech difficulties. The court was required to determine whether Given's conduct amounted to unsatisfactory professional conduct or misconduct under the legal profession's governing legislation.

The central issue before the court was whether Given's actions, or inactions, in handling the client's affairs constituted a failure to maintain the requisite standards of competence and diligence. Specifically, the court considered whether Given should have been aware that the client may not have had the capacity to execute the enduring power of attorney and the wills, and if he had an obligation to seek medical opinion or information to verify the client's capacity. The court also examined whether Given had taken adequate steps to ensure that the client understood the nature and effect of the legal documents in question.

In reaching its decision, the court found that Given had indeed fallen short of the required professional standards. The court highlighted several instances of inadequate conduct, including the failure to take adequate notes during the interview with the client, meeting with the client in the presence of a relative, and neglecting to seek any medical opinion or information regarding the client's capacity. The court concluded that these actions amounted to unsatisfactory professional conduct and misconduct, as they demonstrated a lack of reasonable competence and diligence on Given's part. Consequently, the court found Given guilty of the charges brought by the Legal Services Commissioner.

The court ordered that Given be publicly reprimanded, be required to attend a continuing professional development course on client care and capacity, and pay costs associated with the proceedings. This outcome underscores the importance of legal practitioners adhering to the highest standards of professional conduct and diligence, particularly in cases involving clients with diminished capacity.

Orders