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Failed to complete a retainer

01 December 2017

[Names used in this article are fictitious]

A lawyer who failed to complete a retainer and comply with directions from a court has been censured and fined $2,000 by a lawyers standards committee.

This fine is the maximum provided in the Law Practitioners Act 1982, which covers penalties for conduct before 1 August 2008.

The lawyer, Gadshill, acted for a Mr D from January 2007 in relation to an interest in the estate of his former partner. Probate had been obtained and Mr D was named as the sole beneficiary.

At the time of her death, Mr D’s former partner was engaged to be married to another man, Mr E. In late 2006, Mr E applied to the Family Court for orders under The Family Protection Act 1955 and The Law Reform (Testamentary Promises) Act 1949.

The deceased’s mother and siblings challenged the will’s validity by applying in July 2007 to the High Court for probate to be recalled.

Mr D met with Gadshill in October 2007, and instructed the lawyer how he wished to respond in his statement of defence.

Having heard nothing further from Gadshill, Mr D was under the impression the statement had been filed.

The family was subsequently successful in having probate recalled by the High Court. The judge noted that Mr D had not filed a statement of defence and that neither he nor any counsel appeared. Mr D therefore no longer had standing as a beneficiary, the High Court determined.

Probate was granted to an earlier will that predated Mr D’s relationship with the deceased. Subsequently, the proceedings brought by Mr E were resolved by consent.

Mr D said that he had tried to get information and updates from Gadshill on a number of occasions since the October 2007 meeting to no avail. He said he was upset that he was not made aware that probate for the will in which he was sole beneficiary had been recalled and the estate distributed to the family.

Gadshill’s failure to act on Mr D’s instructions to file a statement of defence, or his failure to alert him to the consequences of failing to take steps in the matter, was “serious”, the committee said.

“Likewise his failure to disclose to his client all relevant information he had received from the court and plaintiff’s counsel and solicitor, which information would have enabled Mr [D] to make informed decisions about his involvement in the proceedings, is a serious breach of the duty owed to his client.”

Gadshill also had a duty to the court to respond, in one form or another, to the minute the court provided to him.

Gadshill’s conduct fell short of the standard of competence and diligence a member of the public was entitled to expect of a reasonably competent lawyer, and was unprofessional, the committee said.

Gadshill was in breach of his duty to act competently and in a timely manner consistent with the terms of his retainer and duty to take reasonable care.

The committee found unsatisfactory conduct on Gadshill’s part. As well as the censure and fine, Gadshill was ordered to pay $2,000 costs.

Last updated on the 1st December 2017