Legal Services Commissioner v Ho
[2017] QCAT 95
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- Unreported Judgment
- Legal Services Commissioner v Ho[2017] QCAT 95
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Legal Services Commissioner v Ho[2017] QCAT 95
Legal Services Commissioner v Ho[2017] QCAT 95
CITATION: | Legal Services Commissioner v Ho [2017] QCAT 95 |
PARTIES: | Legal Services Commissioner (Applicant) v Chun Man Andrew Ho (Respondent) |
APPLICATION NUMBER: | OCR144-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Justice DG Thomas Assisted by: Mr Peter Sheehy (Legal panel member) Dr Susan Dann (Lay panel member) |
DELIVERED ON: | 10 April 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
4:00pm on 13 April 2017.
4:00pm on 4 May 2017.
4:00pm on 25 May 2017.
|
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – UNSATISFACTORY PROFESSIONAL CONDUCT – where respondent faced 2 charges for failure to maintain reasonable standards of competence and diligence in preparation and execution of an enduring power of attorney and will – where alleged that the respondent was or should have been aware that the client may not have capacity to execute the power of attorney and the will – where client had mild intellectual disability and lived in a co-dependant relationship with her mother – where respondent failed to take adequate notes of interview with the client – where respondent met with client in presence of relative – where power of attorney and will subsequently invalidated by QCAT order due to lack of capacity – whether respondent should have sought medical opinion or information verifying the client’s capacity based on answers given by client – whether respondent failed to conduct appropriate enquiries to satisfy himself that the client understood the nature and effect of an enduring power of attorney and will – whether unsatisfactory professional conduct or misconduct Legal Profession Act 2007 (Qld) ss 418, 419, 456, 462, 464, 465 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 107 Legal Services Commissioner v Ford [2008] LPT 12 Legal Services Commissioner v Given [2015] QCAT 225 Legal Services Commissioner v Madden [2008] QCA 301 Legal Services Commissioner v Penny [2015] QCAT 108 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- [1]The Commissioner alleges that the following charges constitute professional misconduct and/or unsatisfactory professional conduct:
Charge 1 –
On 12 July 2013, the respondent failed to maintain reasonable standards of competence and diligence in relation to the execution of an enduring power of attorney for his client, Merrilyn Lowrey.
Charge 2-
On 12 July 2013, the respondent failed to maintain reasonable standards of competence and diligence in relation to the execution of a Will in favour of his client, Merrilyn Lowrey.
- [2]In response, Mr Ho admits the allegations contained in the application filed by the Legal Services Commissioner.
Background
- [3]The parties have filed an agreed statement of facts from which the Tribunal finds the following.[1]
- [4]Mr Ho’s client, Ms Lowrey, had a mild intellectual disability and lived in a co-dependant relationship with her mother who was 75 years old. Ms Lowrey was 50 years old.[2]
- [5]Prior to 12 July 2013, Mr Ho was asked by Bryan Bartlett to attend on Mr Bartlett’s sister in law, Ms Merrilyn Lowrey, to prepare and execute an enduring power of attorney and a Will.[3]
- [6]Mr Bartlett provided instructions to Mr Ho in relation to the preparation and execution of the enduring power of attorney and Will.
- [7]The meeting was arranged for 12 July 2013 and was to take place at the home of Ms Lowrey, and her mother, at Sunnybank Hills.
- [8]Prior to the meeting, Mr Ho prepared:
- An enduring power of attorney appointing Ms Lowrey’s sister, Madonna Bartlett-Eagle, as attorney and her husband Bryan Bartlett as attorney if Madonna Bartlett-Eagle was unable or unwilling to act;[4]
- A new Will for Ms Lowrey appointing Ms Lowrey’s sister, Madonna Bartlett-Eagle, as executor and trustee and her husband Bryan Bartlett as executor and trustee if Madonna Bartlett-Eagle was unable or unwilling to act.[5]
- [9]Prior to the meeting, Mr Ho did not consult with his client, Ms Lowrey, in relation to preparation of either of those documents.
- [10]Prior to the meeting, Mr Ho was advised that Ms Lowrey had an intellectual disability. He was also told that his client’s mother had Parkinson’s disease and had trouble leaving the house.[6]
- [11]On 12 July 2013, Mr Ho, together with a law clerk employed by Wheldon & Associates, attended upon Ms Lowrey and her mother at their home in Sunnybank Hills.
- [12]During the meeting, Mr Ho asked Ms Lowrey “do you know what these documents are for?” and she replied, “it’s so that they can help me with my money”.[7]
- [13]No detail of any other questions is contained in the Statement of Agreed Facts.
- [14]The interview took place in the presence of Ms Lowrey’s mother, and Mr Ho did not undertake any part of the interview with his client alone.[8]
- [15]Mr Ho did not undertake the interview in accordance with the Office of the Public Guardian’s “Guidelines for Witnessing Enduring Documents”. This means that Mr Ho did not make use of open-ended questions and did not approach the enquiry as to capacity in the way required by the Guidelines.
- [16]At the meeting, Ms Lowrey signed the enduring power of attorney and Mr Ho witnessed her signature and signed the witness certificate on the enduring power of attorney. Ms Lowrey also signed the Will and Mr Ho witnessed her signature on the Will.[9]
- [17]Mr Ho did not make any written record of the steps taken in assessing the capacity of Ms Lowrey to understand the nature and effect of the enduring power of attorney or the Will.
- [18]Mr Ho did not seek any medical opinion verifying the client’s capacity to sign either the enduring power of attorney or the Will.
- [19]In December 2013, Christine McDonald (another sister of Ms Lowrey) applied to the Queensland Civil and Administrative Tribunal for the appointment of a Guardian and an administrator for Ms Lowrey.
- [20]On 21 May 2014, the Queensland Civil and Administrative Tribunal found that Ms Lowrey did not have the capacity to understand the nature and effect of the enduring power of attorney dated 12 July 2013 and the Queensland Civil Administrative Tribunal found that the enduring power of attorney was invalid.
Discussion
- [21]In relation to charge 1, the Legal Services Commissioner asserts that Mr Ho failed to maintain reasonable standards of competence and diligence in the execution of the enduring power of attorney in that he:
- Failed to seek any medical opinion and/or information verifying the client’s capacity to sign the enduring power of attorney prior to or at the time of his attendance on the client on 12 July 2013;
- Failed to conduct an interview with the client alone;
- Failed to undertake the interview with the client in accordance with the Office of Public Guardian’s “Guidelines for Witnessing Enduring Documents”; and
- Failed to make any written record of the steps taken in assessing the client’s capacity to understand the nature and effect of the enduring power of attorney, including all questions and answers.
- [22]In relation to charge 2, the Legal Services Commissioner asserts that Mr Ho failed to maintain reasonable standards of competence and diligence in the execution of the Will in that he:
- Failed to seek any medical opinion and/or information verifying the client’s capacity to sign the Will prior to or at the time of his attendance on the client on 12 July 2013; and
- Failed to make any written record of the steps taken in assessing the client’s capacity to understand the nature and effect of the Will, including all questions and answers.
- [23]Pursuant to section 418 of the Legal Profession Act 2007 (Qld) (‘LPA’), unsatisfactory professional conduct includes conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
- [24]Professional misconduct includes unsatisfactory professional conduct if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence.[10]
- [25]A practitioner must take adequate steps so as to be satisfied that the client has sufficient capacity to execute the document and in that context understand the nature and effect of the document. A practitioner must establish a reliable method of communication which will enable the practitioner to be satisfied that the client understands the instructions being given and is providing coherent instructions upon which the practitioner can rely.
Charge 1(a) and Charge 2(a)
- [26]Charge 1(a) and charge 2(a) refer to a failure to seek medical opinion and/or information verifying the client’s capacity to sign the enduring power of attorney and also the Will.
- [27]In relation to whether a legal practitioner should recommend that a medical opinion be obtained, the steps which should be taken by the legal practitioner will depend upon the particular circumstances of the case.
- [28]If the practitioner becomes concerned, based upon the practitioner’s observations of the client, the practitioner will be expected to make further enquiry or investigation which could include additional questioning and, in some cases, a suggestion that medical opinion be obtained.
- [29]In the current circumstances, from the Agreed Statement of Facts, it seems that:
- Prior to the meeting, Mr Ho was advised that Ms Lowrey had an intellectual disability;[11]
- Mr Ho made very little enquiry at or before the meeting. He did not ask “open-ended” questions.
- When he asked “do you know what these documents are for” his client replied “it’s so they can help me with my money”.[12] Such a response does not indicate that Ms Lowrey understood the nature of the documents being executed, nor understood the instructions provided with respect to each of the documents including the Will. A response of this type should have led a competent practitioner to be concerned.
- [30]In the circumstances, Mr Ho should have embarked upon a higher level of enquiry including open-ended questions, which would have revealed more about his client’s capacity to execute the documents and to understand the instructions which were being provided to him.
- [31]In the circumstances, Mr Ho should have recommended that a medical opinion be obtained.
- [32]The failure to take those steps falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and so, at the least, amounts to unsatisfactory professional conduct.
Charge 1(b)
- [33]Charge 1(b), in relation to the enduring power of attorney, is that Mr Ho failed to conduct an interview with the client alone.
- [34]Again, whether meeting the client alone is necessary depends on the particular circumstances.
- [35]In this case, Mr Ho did not know Ms Lowrey before the meeting and indeed took instructions from a third party. He knew that Ms Lowrey had an intellectual disability and lived in a “co-dependent relationship” with her mother. The answer to the question regarding the purpose of the documents, which is set out in the agreed statement of facts should have led Mr Ho to be concerned. In these circumstances Mr Ho should have met with Ms Lowrey alone to ensure that she was not influenced by the presence of any other person.
- [36]The failure to do that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and so amounts, at the least, to unsatisfactory professional conduct.
Charge 1(c)
- [37]Charge 1(c), in relation to the enduring power of attorney, is that Mr Ho failed to undertake the interview with the client in accordance with the Office of Public Guardian “Guidelines for witnessing enduring documents”.
- [38]Fryberg J in Legal Services Commissioner v Ford,[13] considered that a failure to undertake an interview in accordance with the Guidelines was one of a number of factors which together satisfied him that the practitioner was guilty of unsatisfactory professional conduct.
- [39]The circumstances of the particular case will influence what is expected of the practitioner. The Guidelines deal with the way in which a person would proceed with a view of being satisfied that the person executing the document understands that nature and effect of the document and has the capacity to execute the document.
- [40]In this case, Mr Ho did not know Ms Lowrey before the meeting and indeed had no contact with her at all. He knew that Ms Lowrey had an intellectual disability. The answer to the question regarding the purpose of the documents which is set out in the agreed statement of facts should have led Mr Ho to be concerned.
- [41]In those circumstances, Mr Ho should have followed the Guidelines issued by the Public Guardian and his failure to do so falls short of the standard of competence and diligence which a member of the public is entitled to expect a reasonably competent Australian practitioner to achieve. His conduct amounts, at the least, to unsatisfactory professional conduct.
Charge 1(d) and Charge 2(b)
- [42]Charge 1(d), in relation to the enduring power of attorney and Charge 2(b) in relation to the Will relates to the fact that Mr Ho did not make any written records of the steps taken in assessing the capacity to understand the nature and effect of the enduring power of attorney and the Will, including all questions and answers.
- [43]The Guidelines issued by the Public Guardian suggest, correctly, it is prudent to be prepared for any challenges to the assessment and in that context suggest that a written record should be made of all steps taken in assessing capacity.
- [44]The extent of the record which should be kept will depend on the particular circumstances.
- [45]As a general rule in the course of acting for clients, a practitioner should keep adequate records, such as meeting minutes, telephone attendances and the like.
- [46]In the context of preparation and execution of an enduring power of attorney and a Will, the practitioner is an independent person who has firsthand knowledge of the events surrounding the execution of the documents, including the instructions provided by the client. Not infrequently, the practitioner is the only witness in that position.
- [47]Ultimately, questions of capacity are decided by a Court or Tribunal (such as QCAT). Such decision-making may be assisted by reference to evidence based on accurate contemporaneous records. In discharging the duty to the client, where there is any cause to be concerned regarding the issue of capacity, the practitioner must record accurate details of what happened leading up to the execution of the documents which will be relevant to the task which the court or tribunal undertakes. This includes details of the questions and answers which were directed towards the issue of capacity.
- [48]In this case, the state of Mr Ho’s knowledge (referred to earlier in these reasons) was such he should have made further enquiries and kept records of the steps taken in accessing the capacity to understand the nature and effect of the enduring power of attorney and the Will, including all questions and answers.
- [49]Mr Ho’s failure to do this is a failure to adhere to the standards of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and so amounts, at the least, to unsatisfactory professional conduct.
- [50]There is another aspect of this case, which demonstrates a failure to maintain standards of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
- [51]The agreed facts indicate that:
- Mr Ho was contacted by Mr Bartlett, who not only made arrangements for Mr Ho to visit Ms Lowrey but also provided instructions in relation to the preparation and contents of the power of attorney and Will.
- Before speaking with his client to obtain instructions, Mr Ho prepared each document based upon the instructions provided by Mr Bartlett.
- There is no evidence that Mr Ho took any steps to obtain instructions from Ms Lowrey about the contents of the documents.
- [52]The practitioner has a duty to appropriately seek, and act on, the client’s instructions. There was a comprehensive failure to fulfil this duty. Such conduct is unacceptable and fails short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
- [53]The Tribunal has considered whether that conduct involves a substantial failure to reach the required standard of competence and diligence which would mean the conduct amounts to professional misconduct rather than unsatisfactory professional conduct. On the balance, because this was an isolated incident, the Tribunal concludes that the conduct was unsatisfactory professional conduct.
- [54]In the circumstances, Mr Ho’s conduct fell short of the standard of competence and diligence that a member of the public in entitled to expect of a reasonably competent Australian legal practitioner and the Tribunal concludes that the conduct of Mr Ho amounted to unsatisfactory professional conduct.
Sanction
- [55]Upon finding that a practitioner has engaged in unsatisfactory professional conduct, the Tribunal may make any order it sees fits including one of those orders outlined in section 456 LPA.
- [56]Mr Ho is 31 years old and was admitted to practice on 7 September 2009. He has no previous adverse findings by a disciplinary body. At the time of the circumstances which led to the charges he was employed as a solicitor by the law practice Wheldon & Associates.
- [57]Mr Ho has not contested the charges. In his response, he admitted the allegations and has co-operated in preparing and agreeing the statement of agreed facts.
- [58]The disciplinary proceedings were issued on 2 September 2016, with the response being filed on 22 November 2016. With the co-operation of both parties, the hearing took place on 16 March 2017.
- [59]Penalties are imposed not as a punishment of the practitioner but rather in the interests of protection of the community from unsuitable practitioners.[14] In terms of sanction, the Tribunal has regard to the protection of the public and the maintenance of professional standards.
- [60]
- [61]The respondent points to the fact that he co-operated with the Legal Services Commissioner, that he had been a practitioner of only three years standing at the time of the conduct, that the conduct was limited to one day and did not involve any dishonest act and that there was no suggestion he attempted to take advantage of the client. He also submits that he is currently not practicing but remains home caring for children.
- [62]The respondent submits that the appropriate order should be:
- A public reprimand; and
- A fine of $1,500 to be paid within 30 days of the day of the order.
- [63]The Tribunal takes into account the fact that the respondent has had no previous allegations of misconduct against him, and particularly that he co-operated fully with the Legal Services Commissioner.
- [64]In Penny and Given, fines of $1,500 were imposed. The conduct in question was more serious than that which was considered in Penny and Given, because of the fact that the documents in question were prepared in advance, on instructions from another person without reference to the client. There was also no evidence that instructions were sought from the client or the contents of the documents, nor were the documents carefully checked with the client in a way that fully explained the contents to the client.
- [65]In those circumstances, the Tribunal considers it appropriate that the pecuniary fine should be in the sum of $2,000.
- [66]The Tribunal therefore orders that:
- The respondent be publicly reprimanded; and
- The respondent pay the sum of $2,000 within 30 days of the date of this order.
Costs
- [67]The applicant seeks an order for costs.
- [68]Pursuant to section 462(1) LPA, the Tribunal must make an order requiring the practitioner to pay costs unless the Tribunal is satisfied that exceptional circumstances exist. There has been no suggestion that exceptional circumstances exist and the Tribunal can identify no exceptional circumstances.
- [69]The applicant seeks an order:
- In a fixed amount, if this can be agreed between the parties pursuant to section 462(5)(a) LPA, to be paid within one month of the date of the decision; or
- As assessed pursuant to section 462(5)(b), to be paid within one month of the assessment.
- [70]Mr Ho submits that as the matter was never defended and the hearing took place on the papers without an oral hearing, an order should be made that Mr Ho pay the Legal Services Commissioner’s costs fixed in the amount of $1,000.
- [71]An order for costs may be for a stated amount and, if not for a stated amount, must state the basis on which the amount must be decided.[17]
- [72]If possible, the QCAT Act provides that the Tribunal should fix costs.[18]
- [73]It is only possible to fix costs if the parties provide sufficient information to the Tribunal. In this matter, the Tribunal does not have any information upon which it is possible to fix costs.
- [74]However, the Tribunal encourages the parties to endeavour to agree a figure for costs and will make an order, which accommodates this possibility.
- [75]In those circumstances the Tribunal orders that in the absence of an agreement as to costs within 30 days, the respondent pay the applicant’s costs to be assessed on the standard basis on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld) in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland.
Notice of intention to seek compensation order
- [76]A notice of intention to seek compensation order was filed by the complainant, Christine Laurel McDonald.
- [77]The following documents were filed in support of the claim:
- Statement signed by Christine Mcdonald;
- Support documentation:
- Pay advice period ending 14.07.2013;
- Copy tax invoice dated 18.07.2013.
- [78]The statement is to the effect that “the following pecuniary loss” is claimed from Mr Ho:
- Quantum 10 hours (two days pay per pay scale; see attached pay advice period ending 14.07.2013) being $506.66 attending two days hearing QCAT.
- Quantum $550.00 (Tax invoice charged to Mrs PO Lowrey and Ms MJ Lowrey; see attached copy of invoice dated 18 July 2013) for Wills and POA.
- [79]The total amount specified is $1056.66.
- [80]The submission which is contained within the documents reads as follows:
“I am seeking compensation for two days pay for the application and subsequent hearing of the matter to the then Adult Guardian that was necessary to challenge the POA for Merrilyn Lowrey who has an intellectual disability.
Further I seek compensation for the invoice relating to charges from Wheldon and Associates for Costs and Disbursements for Wills and POA as Merrilyn did not engage Wheldon and Associates to do said work.”
- [81]In response, Mr Ho has submitted:
- The complainant was not the client at the time;
- The compensation claim should be made against the firm Wheldon & Associates, who employed the respondent at the time of the incident.
- [82]Section 464 LPA deals with compensation orders.
- [83]A compensation order can include one or more of the following:
- an order that a law practice cannot recover or must repay the whole or a stated part of the amount that the law practice charged a complainant for stated legal services;[19]
- an order that a law practice pay to a complainant an amount by way of compensation for pecuniary loss suffered because of conduct that has been found to be…unsatisfactory professional conduct.[20]
- [84]In the case of a compensation order of the type mentioned in section 464(d), a compensation order must not be made unless the Tribunal is satisfied:
- (a)If there is a complainant in relation to the discipline application – that the complainant has suffered pecuniary loss because of the conduct concerned; and
- (b)
- (a)
- [85]It is clear from the provisions of section 464, that a compensation order is made against the law practice, not the individual practitioner who was the subject of the disciplinary proceedings. In this case, the law practice was Wheldon & Associates.
- [86]In terms of compensation orders which can be made, the Tribunal is limited to the orders which are set out in section 464 LPA. This is because section 464 LPA provides that “a compensation order is 1 or more of the following”.
- [87]A compensation order which involves repayment of costs can only relate to repayment of “the whole or stated part of the amount that the law practice charged a complainant”. It follows that the compensation order can only be made with respect to charges that have been made to the complainant.
- [88]Mrs McDonald suggests that Ms Lowrey did not engage Wheldon & Associates to act in the matter. There is no evidence (or suggestion) of this in the statement of agreed facts.
- [89]For a claim for pecuniary loss, section 464(d) requires that the Tribunal must be satisfied that the complainant suffered pecuniary loss because of the conduct of the practitioner.
- [90]A question which arises is whether the need for the QCAT proceedings arose because of the preparation of the enduring power of attorney by Mr Ho or whether the QCAT proceedings would have been necessary, in any event, to appoint a guardian and an administrator.
- [91]This question is relevant due to the fact that it is only possible to make an order with respect to pecuniary loss with respect to loss which has occurred because of the conduct concerned.
- [92]To enable the complainant to provide submissions based upon the decision which has been made against Mr Ho, and in particular the observations made in these reasons, and for the law practice to provide a response, the Tribunal orders that:
- The Legal Services Commissioner must serve a copy of the reasons and the Notice of Intention to Seek Compensation Order on Wheldon & Associates, by:
4:00pm on 13 April 2017.
- The complainant, Christine Laurel McDonald, must file in the Tribunal one (1) copy and give to Wheldon & Associates of 12 Zamia St, Sunnybank QLD 4118, one (1) copy of any further submissions upon which she intends to rely in demonstrating that the Notice of Intention to Seek Compensation falls within the requirements of sections 464(a), 464(d) and 465(1) Legal Profession Act 2007 (Qld), by:
4:00pm on 4 May 2017.
- That Wheldon & Associates file in the Tribunal one (1) copy and give to Christine Laurel McDonald at care of Legal Services Commissioner, one (1) copy of any submissions upon which Wheldon & Associates intends to rely in relation to the Notice of Intention to Seek Compensation Order, by:
4:00pm on 25 May 2017.
- Unless either Christine Laurel McDonald or Wheldon & Associates request an oral hearing, the Notice of Intention to Seek Compensation Order will be determined on the papers after 25 May 2017.
Footnotes
[1]Filed 14 December 2016.
[2]Statement of Agreed Facts, filed 14 December 2016, paragraphs 8 and 9.
[3]Ibid, paragraph 10.
[4]Ibid, paragraph 11.
[5]Statement of Agreed Facts, filed 14 December 2016, paragraph 24.
[6]Ibid, paragraph 13.
[7]Ibid, paragraph 14.
[8]Ibid, paragraph 18.
[9]Ibid, paragraphs 15, 16, 25 and 26.
[10]LPA, s 419(1)(a).
[11]Statement of Agreed Facts, filed 14 December 2016, paragraph 12.
[12]Ibid, paragraph 14.
[13][2008] LPT 12.
[14]Legal Services Commissioner v Madden [2008] QCA 301.
[15][2015] QCAT 108.
[16][2015] QCAT 225.
[17]LPA, s 462(5).
[18]QCAT Act, s 107(1).
[19]LPA, s 464(a).
[20]Ibid, s 464(d)(i).
[21]Ibid, s 465(1).