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No instructing solicitor and failure to release a client’s file

15 June 2017

A barrister, M, has been fined $4,000 for failing to release a client’s file. It also appeared that he did not have an instructing solicitor.

This followed a lawyers standards committee making two findings of unsatisfactory conduct against M.

M was instructed to act for Q who had been removed from his professional body’s register. Q terminated M’s retainer after his judicial review proceedings were struck out.

Q’s new lawyer wrote to M requesting the file and attaching an authority to uplift from Q. A follow-up email was sent three weeks later. A further follow-up email was sent almost four weeks later, again requesting that the files be forwarded as soon as possible.

Rule 4.4.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 “provides that a former lawyer must act upon any written request to uplift documents without undue delay,” the committee said.

M had “clearly failed to comply with that rule” and that constituted unsatisfactory conduct.

The committee also found that, on the balance of probabilities, it was more likely than not that M did not have an instructing solicitor, in breach of the intervention rule, and that constituted unsatisfactory conduct.

As well as the fine, the committee ordered M to pay $1,000 costs.

Failing to keep proper records

In a separate but related decision, the standards committee censured and fined M $4,000 for unsatisfactory record-keeping.

This decision followed an own-motion investigation, which began because M had not complied with the committee requiring him to produce his files on the Q matter.

After he was notified of the own-motion investigation, M provided what he said was his file in the matter. The committee was concerned about the form the file took and set the matter down for a hearing. After the notice of hearing had been sent out, M provided what he referred to as the “balance of the file”.

The committee looked at whether M’s record-keeping fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer, and found that it did fall short.

The “file” M provided “consisted of a loose pile of stapled, clipped and bound documents – being mainly court documents and very little correspondence,” together with loose papers. The committee said the “level of disorganisation” was illustrated by the “file” containing material unrelated to the client.

“The committee was concerned about the disorganised state of the papers that [M] described as the ‘file’ and also was concerned that the papers appeared to not be a complete record of the matter.” The committee considered that what had been provided was “two piles of loose papers with no clear or coherent order”.

Record-keeping is a “basic professional obligation” of a lawyer of which M had fallen short. The committee therefore found unsatisfactory conduct by M.

As well as the censure and fine, the committee ordered M to pay $1,000 costs.

Last updated on the 30th June 2017