Published on 6 March 2020
[All names used in this article are fictitious.]
A lawyer who failed to act competently in relation to a medical misadventure claim has been fined $2,000 by a lawyers standards committee.
A client, Mr B instructed the lawyer, Leicester, in March 2013.
Following two meetings between Mr B and Leicester, the lawyer said she read the file notes, undertook two hours research and did an internet search on the procedure. She also said she wrote to an oral surgeon in May 2013.
Considering insufficient progress was being reported to him, Mr B emailed Leicester in November 2013. The email asked: “Could you please advise me of the current situation at your earliest or refund the $750 fees you requested prior to acting for me if you still have nothing of significance to report.”
Leicester said she rang Mr B as a result of that email. She said that Mr B told her he did not wish her to continue with the file and she wrote to him to confirm his instructions to close the file.
Mr B denied that such a call took place, and that he never received any letter confirming his instruction to close the file.
After that, Leicester did no further work on the file.
In December 2015 Mr B sent Leicester a couriered letter. In that Mr B said that despite his numerous phone calls and Leicester’s assurances that she would get back to him “shortly”, in the two years Leicester had not responded in any positive manner, with no communication initiated from her and no tangible evidence of progress on his file.
He formally terminated the arrangement to act on his behalf. He sought a refund and the return of his file.
“Having considered all the available material and stated recollections of the parties the committee has come to the conclusion that, in the absence of a record of advice to Mr [B] on ‘medico legal procedure and negligence issues’ and of any reporting letter on termination of the retainer, [Leicester] has failed to act competently and in a timely manner consistent with the terms of her retainer and the duty to take reasonable care,” the committee said.
The committee determined that was unsatisfactory conduct on Leicester’s part.
In her initial response to the complaint, Leicester did not address Mr B’s request for the return of his file.
The committee then directed Leicester to produce the file. She told the committee she could not locate the file and had sought assistance to find it.
Leicester failed to respond in a timely manner to Mr B’s request for the return of his file, and that was unsatisfactory conduct, the committee found.
“In the committee’s view the practitioner’s file and records maintenance procedures were woefully inadequate.”
As well as the $2,000 fine, the committee ordered Leicester to pay $1,000 costs.
On review, the Legal Complaints Review Officer reversed a finding by the committee that Leicester’s fees were fair and reasonable and instead made a further finding of unsatisfactory conduct. All other aspects of the committee’s decision were confirmed.