Background 

Mr A was instructed by two clients to make amendments to their wills and enduring power of attorney documents.  

After a period of nearly six months, the clients had not heard anything from Mr A and contacted him for an update on progress. Mr A conceded that the matter had slipped through the cracks and that he had lost his notes containing their instructions. The clients provided their instructions for a second time and Mr A proceeded to draft the wills. However, they were not sent to the clients or executed.  

A year after their initial instructions, the clients approached a new solicitor to complete the work and complained directly to Mr A’s firm about the service. They directed their complaint to the relevant lawyer on the firm’s website, Mr B.  

Mr A responded to advise that Mr B was no longer working at the firm, having retired 5 years ago. He explained that responsibility for the file lay with him and apologised for the lapse in service. He agreed that the level of service was below what should be expected.  

Issues 

The clients complained that Mr A provided unsatisfactory legal services. They submitted that his response to their complaint was inadequate, as it did not address the concerns raised or provide an explanation about why the complaint information on the firm’s website was out of date.  

Failure to draft amendments and present wills for execution in a reasonable time 

The Committee noted that, upon receiving instructions for a second time, Mr A did not respond or provide drafts of the amended wills to clients for a further six months. In fact, he only became aware of the failure when it was brought to his attention by the clients for a second time.  

Mr A explained that the draft wills were prepared immediately following his second discussion with the clients. He acknowledged that the wills were not presented for execution in a reasonable time but commented that, due to an oversight, he was unaware that they had not been sent or that the clients had not been informed of progress.  

The Committee considered that Mr A was in clear breach of rule 3, having failed to act competently and in a timely manner on instructions received. It did not consider it relevant that he was unaware of the drafts not being forwarded and added that it was his responsibility to ensure the wills were presented promptly for consideration. The client’s instructions could not be considered complete until this occurred, and Mr A’s firm should have had systems in place to prevent this situation.  

The Committee noted that preparing wills exposes lawyers to claims from disappointed beneficiaries and, had either client passed away during the period where the amended wills were not presented, Mr A could have been subject to a potential negligence claim. Accordingly, the Committee considered that the breach of rule 3 of the RCCC amounted to unsatisfactory conduct.  

Losing notes containing instructions  

Mr A accepted that mislaying his notes from the initial meeting was not acting competently and was an additional breach of rule 3 of the RCCC. The Committee considered it also to be a breach of rule 11, as it compromised his ability to adhere to the duties he owed to his clients and had the potential to adversely affect the reputation of the legal profession.  

The Committee considered the breaches of rule 3 and rule 11 of the RCCC amounted to unsatisfactory conduct.  

Failure to inform clients about delay and respond in a timely manner 

The Committee noted that there was no communication from Mr A for nearly six months, which prompted the clients to follow up. The Committee considered Mr A’s failure to advise the clients of the delays in amending their wills to be a breach of rule 3.3 of the RCCC. 

The Committee acknowledged that Mr A did promptly respond to the clients once they followed up and he readily conceded that he lost his notes. However, after obtaining their instructions again, he proceeded to make no contact for a further six months. The Committee considered his failure to respond in a timely manner was a breach of rules 3.2 and 7.2 of the RCCC. In combination with his breach of 3.3, this amounted to unsatisfactory conduct.  

Failure to provide retainer and terms of engagement 

On assessing the issues, the Committee became aware that a letter of engagement was not provided to the clients. The Committee noted that lawyers are required to provide terms of engagement and client care information under rules 3.4 and 3.5 of the RCCC. The Committee considered that this is typically accompanied by a tailored letter of engagement summarising the client’s instructions and scope of work to be undertaken.  

Mr A noted that the clients had used his firm’s services for a number of years and had received numerous engagement letters over that time. He also went over the main aspects of the engagement in an initial meeting with the clients.  

The Committee did not consider it sufficient to rely on earlier engagement letters and noted that Mr A was required to provide fresh engagement documents. The Committee was of the view that, had Mr A provided this, he may have avoided the situation of losing his notes as they would have been separately documented on the engagement letter. The Committee concluded that this was a breach of rules 3.4 and 3.5 of the RCCC and amounted to unsatisfactory conduct.  

Penalty 

The Committee noted that Mr A’s breach of rule 3 by failing to follow instructions was the main conduct of concern. The other breaches were subsidiary to this.  

Mr A’s behaviour was considered to be of a moderate level of seriousness. The Committee took into account the existing mitigating factors, specifically that there was no prejudice to the clients, Mr A did not charge a fee and he conceded that his conduct fell short of the standard expected. The Committee resolved to impose a fine of $4,500 and costs of $500 

The Committee considered the determination would be of educative value for the wider profession, serving as a reminder of the vital importance of acting promptly on will instructions. The Committee provided the reminder that lawyers who fail to act promptly on will instructions not only fail to discharge their professional obligations to clients but could also find them themselves sued by beneficiaries.