Background 

Ms F represented an elderly client, Ms G, who was seeking to have an enduring power of attorney (EPA) prepared in relation to personal care and welfare. Ms G’s relative, Ms H, was a non-lawyer employee of Ms F’s firm and recommended Ms F’s services to Ms G.  

Ms H prepared an EPA for personal care and welfare, as well as an additional EPA for property. Ms F presented Ms G with the documents. A letter of engagement was not provided at any stage.  

Ms G was later advised by another lawyer that her attorney had extensive powers in relation to her property and bank accounts. Ms G explained that she had not been aware of this, and a complaint was made on her behalf. 

Issue 

It was complained that Ms G was coerced by Ms H in relation to the EPA documents, and that the full implications were not explained to her correctly. It was submitted that she did not have sufficient capacity at the time to give instructions. It was argued that Ms F also failed to identify and manage a conflict of interest, resulting in Ms H preparing the EPA documents for her relative.  

Protecting and promoting the interests of the client to the exclusion of the interests of third parties 

The Committee commented that it is incumbent on any lawyer to take all reasonable steps to ensure their client is cognisant of the relevant circumstances and able to give clear instructions. This was especially important here, due to Ms G being elderly and having known health issues. 

Ms F explained that her client appeared to have a full understanding of the issues at their meeting where the EPA documents were signed, including the fact that the attorney would be assisting with her banking and paying of bills. However, she conceded that she ought to have insisted on a medical certificate prior to the meeting. She confirmed her approach with Ms G does not reflect her current practice, where medical certificates are routinely obtained.  

The Committee remained concerned that there was little evidence that Ms F had discussions with Ms G that would have satisfied her of Ms G’s capacity to give instructions before the EPA documents were signed. The lack of record keeping was a departure from the standards expected of a lawyer and the Committee confirmed this was a breach of rule 6 of the RCCC and constituted unsatisfactory conduct. 

Providing information in writing on principal aspects of client service 

Ms F admitted that a letter of engagement was not provided to Ms G and that this was not discovered until the matter was completed and invoiced. The Committee appreciated that administrative oversights may occur on any file but noted that the obligation to provide a letter of engagement is fundamental to good legal practice. Failure to provide this was a clear breach of rule 3.4 of the RCCC.  

When set against the circumstances of this case where Ms G’s capacity was in question, the Committee considered that this was unsatisfactory conduct.  

Taking all reasonable steps to ensure that persons employed are competently supervised at all times 

The Committee accepted that it is routine for administrative staff to deal with enquires relating to powers of attorney and to prepare drafts for review by lawyers. The Committee also agreed that it is not uncommon for staff to recommend their employer’s services to friends or family members, as Ms H did.  

However, the Committee acknowledged there is a risk when there is a lack of separation between the person who recommended the services and the person undertaking work on the file. This risk is increased in matters involving family members.  

It was clear that the relationships between the parties and Ms G’s circumstances were known to Ms F at the time. Following Ms H’s initial work on the file, Ms F missed a valuable opportunity to responsibly supervise her by discussing the potential conflict issues with her.  

The lack of available information around Ms F’s handling of the file was an issue of concern to the Committee. There was no documentation of discussions held with Ms G about the EPA documents, specific advice given or guidance provided to Ms H. The Committee considered that this was a failure to appropriately manage a conflict of interest under rules 5.4 and 5.4.1 of the RCCC. Since this was also tied to the supervision of a non-lawyer employee, Ms F had additionally breached rules 11 and 11.1.  

The Committee considered that the risks of conflict were evident from the outset in this case, and the lack of careful management and supervision constituted unsatisfactory conduct.  

Penalty 

The Committee was reassured by Ms F’s responses to the complaint, which demonstrated a level of insight into how she could have managed the situation better. Ms F changed aspects of her practice and now seeks independent assurance of capacity. The Committee considered a censure was appropriate to mark its concern and noted there was no specific loss suffered by Ms G or financial gain by the attorneys appointed under the EPA.  

The Committee considered the complexities of managing lawyer-client relationships where there are risks that a conflict of interest might arise. It took the view that this case could provide important guidance to the profession on this point, reminding lawyers and non-lawyer employees of the importance of undertaking full due diligence and staff supervision. Risk can be minimised by ensuring that all interactions and advice are fully documented.