Background 

Mr Z was recommended to Mr Q by one of Mr Z’s relatives. Mr Q’s relative had passed away without a will, leaving behind a property as the main asset of their estate. Mr Q wrote to Mr Z to confirm that he wished to apply to seek sole title of the property and be appointed as administrator of the estate.  

Mr Z advised it would be a long process and provided his terms of engagement along with a rough estimate of fees. Mr Q signed the letter of engagement and paid the retainer fee. 

Over the next 11 months, Mr Q attempted unsuccessfully to contact Mr Z for an update. Mr Z eventually wrote to Mr Q seeking approval to prepare an affidavit together with an application and ancillary orders for filing at the High Court, with the intention of obtaining approval of the Registrar by the end of the year.  

Very minimal contact was made by Mr Z over the course of the next year, despite attempts by Mr Q to discuss the matter. Mr Q contacted the High Court on two occasions, but there was no record of any documents filed with the Court.  

Mr Q complained about Mr Z’s lack of communication, failure to progress his claim and incorrect legal advice. 

Failure to commence regulated services and communicate with client 

The Committee observed that Mr Z did very little work on Mr Q’s matter after receiving the signed terms of engagement and, in fact, did not conduct any services for a period of almost two years. Despite advising that he would prepare an affidavit, application and orders for approval, there was no evidence to show that these documents were ever drafted or filed.  

Mr Z’s failure to make any progress on the matter, combined with a lack of adequate communication with Mr Q, was a breach of his fundamental obligation to act in accordance with all fiduciary duties owed under s 4(c) of the Act.  

The Committee considered that these failures also amounted to a breach of Mr Z’s obligations under the Lawyers and Conveyancers (Lawyers: Conduct and Client Care) Rules 2008. Specifically: 

• to act competently and in a timely manner consistent with the duty to take reasonable care under rule 3, 
• to promote and maintain professional standards under rule 10, 
• to inform Mr Q of any material or unexpected delays in his matter under rule 3.3, 
• to keep Mr Q updated on the progress of his matter under rule 7.1, 
• to respond to enquiries in a timely manner under rule 3.2 and 
• to promptly answer requests for information or other inquiries from Mr Q under rule 7.2.  

Mr Z admitted that he failed to communicate with Mr Q and the Committee determined that these breaches amounted to unsatisfactory conduct.  

Misplacing the file 

Mr Z admitted that he misplaced Mr Q’s file and later reconstructed it. The Committee did not consider misplacing the file by itself would amount to engaging in misleading or deceptive conduct in terms of rule 10.9 of the RCCC. However, it noted that losing a file is a significant event and suggests a failure to properly maintain records. In doing so, Mr Z had breached his obligation to administer his practice in accordance with rule 11(a)(iii) of the RCCC. This breach also amounted to unsatisfactory conduct. 

Penalty 

The Committee considered the conduct to be at the higher end of the scale, with Mr Z failing to advance the matter for a period of two years. The Committee ordered Mr Z to pay a fine of $5,000 and costs of $1,000.  

The Committee was of the view that the determination would serve as a reminder of the vital importance of progressing a matter without undue delay and informing clients of progress during a retainer.