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- Unreported Judgment
Legal Services Commissioner v Ronald Aubrey Lawson QCAT 100
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Legal Services Commissioner v Ronald Aubrey Lawson  QCAT 100
LEGAL SERVICES COMMISSIONER
RONALD AUBREY LAWSON
Occupational regulation matters
1 April 2019
1 April 2019
Justice Daubney, President
Mr Scott Anderson
Ms Julie Cork
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDCUT – OTHER MATERS – where the respondent took instructions for the execution of a new will from an intermediary – where that new will benefited the intermediary and excluded entirely a previous beneficiary – where the respondent did not personally interview the testator – where the respondent did not verify the intermediary’s instructions with the testator – whether such conduct amounts to unsatisfactory professional conduct under s 418 of the Legal Profession Act 2007
Legal Profession Act 2007, s 418, s 462
Legal Profession Conduct Commissioner v Brook  SASCFC 128
Vernon v Watson  NSWSC 600
APPEARANCES & REPRESENTATION:
M Nicolson, instructed by the Legal Services Commissioner
S J English, instructed by Ronald Lawson
REASONS FOR DECISION
- On 13 January 2017, the applicant, Legal Services Commissioner, filed the present discipline application against the respondent, Ronald Aubrey Lawson, preferring one charge, namely that between 30 October 2013 and 2 November 2013 the respondent failed to maintain reasonable standards of competence and diligence in relation to the preparation and execution of a will for the late William Herbert Brown. The precise particulars of the breach of conduct said to constitute the shortcoming in the respondent’s professional attendance were as set out in particular 1.15 of the application, namely:
The respondent failed to maintain reasonable standards of competence and diligence in the preparation and execution of the will in that the respondent:
a) failed to take any instructions from the client in relation to the terms of the second will; and
b) failed to conduct an interview with the client.
- The matter has proceeded at today’s hearing quite expeditiously by reason of the narrowing of the matters in contention. The only evidence to which this Tribunal need have regard is the statement of agreed facts, which was filed on 3 July 2018, expert evidence given by Mr Scott Graham Whitla and the affidavit of the respondent, filed on 12 June 2018.
- The factual matrix is agreed and is set out at length in the statement of agreed facts. The respondent was born on the 2 August 1943 and therefore is now 75 years of age. He was admitted to practice as a solicitor on the 16 February 1967. He has no previous adverse findings by a disciplinary body. He is an Australian lawyer pursuant to s 5(1) of the Legal Profession Act 2007 (Qld) (‘LPA’). He engaged in legal practice as the principal of an eponymous firm at the time the particular conduct took place.
- The uncontested background to this matter is as follows. On 4 August 2009, the late William Herbert Brown signed a will. This is known as his first will. Under the first will, the beneficiaries were:
- (a)Christopher John Brown (a son), a one fifth share;
- (b)Graham Adrian Brown (a son), a one fifth share;
- (c)Madge Narelle McGill (a daughter), a one fifth share;
- (d)Jane Antoinette Witty (her daughter) a two-fifteenth share;
- (e)Jenifer Helen Street (a granddaughter) one-fifteenth share; and
- (f)Denise Lorraine Brown (daughter-in-law) a one-fifth share.
- On 31 October 2013, one of those beneficiaries, Graham Brown – who, as has been noted, is a son of William Brown – contacted the respondent and provided instructions for the respondent to prepare a new will for William Brown. This was known as the second will. In reliance on those instructions, the respondent drafted the second will. Apparently, the background to that was the fact that in about June 2013, William Brown had received from Christopher Brown a two-page letter dated 12 June 2013 in which Christopher Brown criticised William Brown for having left Christopher Brown’s mother in 1984.
- In any event, under the second will – that is, the will as drafted by the respondent at the behest of Graham Brown – Graham Brown’s share of William Brown’s estate was increased from one-fifth to one-quarter, and Christopher Brown was removed as a beneficiary. Thus, under the second will, the beneficiaries were:
- (a)Graham Adrian Brown, a one-quarter share;
- (b)Madge Narelle McGill, a one-quarter share;
- (c)Jane Antoinette Witty, a two-twelfths share;
- (d)Jenifer Helen Barker, a one-twelfths share; and
- (e)Denise Lorraine Brown, a one-quarter share.
- The respondent subsequently organised for two employees of his law practice to attend upon William Brown at a nursing home to enable him to sign the second will and on 1 November 2013, those employees, Catherine Brosnan and Margaret Ansell, attended the Albany Gardens Nursing Home.
- There is reference in the statement of agreed facts to contact between one of those employees and a member of the nursing staff, but in light of amendments made this morning to the application, and in particular the removal of particular 1.8, it is unnecessary to descend any further into that. It is sufficient to note that William Brown signed the second will, and it was witnessed by Ms Ansell and Ms Brosnan.
- Before signing the second will, Ms Ansell read the will to William Brown. He appeared to read the will. He advised Ms Ansell of two errors in the will. One of those was that Jenifer Helen Barker was identified as his daughter, whereas in fact she was a granddaughter. The second error was in the spelling of her first name. The draft will had “J-e-n-n-i-f-e-r”, whereas the correct spelling was “J-e-n-i-f-e-r”. The necessary corrections were made to the will, and those corrections were initialled by William Brown and both Ms Ansell and Ms Brosnan.
- The statement of agreed facts then states:
- At the time the Respondent organised for his employees to attend upon the Client, he was aware of the following matters:
- (a)The client was 94 years old at the time Graham Brown contacted him to prepare the Second Will;
- (b)The Client was living in a nursing home;
- (c)The instructions for the second will were not personally made by the Client, but by the Client’s son Graham Brown;
- (d)Graham Brown and the other Beneficiaries named in the First Will, other than Christopher John Brown, were Beneficiaries under the Second Will and were to receive a proportional increase in their respective share of the client’s estate under the terms of the Second Will; and
- (e)The Respondent had no information or medical evidence about the Client’s state of health.
- The Respondent did not personally interview the Client.
- The statement of agreed facts also notes that at the relevant times – that is, at the times around the preparation and execution of the second will by William Brown – the respondent was under medical care for a wound to his right leg which would not heal, and which required the respondent to wear an electronic medical apparatus which severely restricted the respondent’s movements.
- William Brown died on 19 September 2015, and there is reference, both in the statement of agreed facts and the material before the Tribunal, to certain legal proceedings which were initiated in relation to the second will. Those proceedings and the matters agitated in those proceedings, however, are completely irrelevant to the matter presently before the Tribunal.
- As already noted, the gravamen of the charge brought by the applicant is sourced in the respondent’s conduct in receiving and acting on instructions to prepare the second will from the intermediary Graham Brown without, at any time or in any way, verifying those instructions with the testator. Despite the fact that the respondent was incapacitated by the need to wear the medical device, it was frankly conceded by his counsel before the Tribunal that such verification could easily have been undertaken by the simple expedient of a telephone call from the respondent to the testator.
- In the view of the Tribunal, the conduct of the practitioner in this case, in drafting and presenting for execution a will on which instructions had been provided only by an intermediary and without verifying those instructions with the testator, was conduct which fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.
- That is highlighted in this case by the fact that the intermediary giving these instructions was a person who not only had an interest under the will, but that the instructions that he gave were instructions which would have operated both to increase the share of his take as a beneficiary under the will, and also exclude another beneficiary completely from benefit under the will. Those circumstances alone should have been sufficient to ring the alarm bells for the respondent as to the need to obtain verification of those instructions from the testator. As already noted, that could have been done with a phone call.
- It is unnecessary to have extensive regard to the authorities to make good the finding that the conduct engaged in by the practitioner in this case was not up to the necessary standard. It is sufficient to refer to Legal Profession Conduct Commissioner v Brook, and Vernon v Watson. Both of those cases are cognate examples of circumstances in which a solicitor has been found to have failed to have observed the appropriate reasonable standards of competence by their conduct in taking instructions on a will through an intermediary without verifying the instructions from the testator themselves.
- In those circumstances, therefore, the Tribunal is satisfied that the respondent, on the facts of this case, engaged in unsatisfactory professional conduct within the meaning of that term in s 418 of the LPA.
- Having made that finding, it is then necessary to turn to the appropriate sanction to be imposed. It is to be recalled immediately that the purpose for which this Tribunal makes orders in this jurisdiction is not punitive. Rather, it is for the protection of the public.
- In that regard, the respondent’s personal and professional history is relevant. As already noted, he is a practitioner of many years’ standing with a previously unblemished disciplinary record. The Tribunal also takes note of the particular circumstances in which he found himself at the time with his incapacity and the restrictions that his incapacity placed on his mobility. As I said in the course of argument, that might provide some explanation for the way in which he approached the matter, but it does not provide an excuse for failing to reach the necessary standards of reasonable competence.
- Having regard to the seriousness of the conduct which founded the case brought by the applicant, but balancing that against both the respondent’s personal and professional history and the need to ensure that the Tribunal makes orders which are, and can be seen as, properly protective of the public, it is the view of the Tribunal that the only sanction order which is necessary and appropriate in this case is for there to be a public reprimand of the respondent.
- A public reprimand is no light matter. It is a permanent record of the shortcoming committed by the practitioner in this case. Importantly, it serves the public interest in signalling the seriousness with which the Tribunal regards the conduct in this case and thereby has an aspect of general deterrence.
- Beyond that, however, the Tribunal is not persuaded, particularly having regard to the factors in favour of the practitioner and also the public interest, that it is necessary for there to be any further sanction imposed.
- Turning then to the question of costs, s 462 of the LPA makes it mandatory for the Tribunal to make a costs order in favour of the applicant after a finding of unsatisfactory professional conduct unless the Tribunal is satisfied exceptional circumstances exist.
- Some argument was sought to be advanced by the respondent that there are sufficient exceptional circumstances in this case because of the fact that the applicant only formally made clear that the case was to be limited in the manner that I have described in these reasons at the commencement of the hearing today when the application was amended to remove particulars which, at best, tangentially may have been able to be construed as raising issues as to whether the respondent ought to have been alert to matters such as undue influence and lack of testamentary capacity.
- In fact, as the correspondence makes clear, the applicant had, as long ago as April 2018, made clear that the case brought by the applicant was circumscribed in the way described above in these reasons for decision. So much is clear, for example, from an email dated 18 April 2018 from the principal legal officer of the applicant to the respondent.
- There was some argument by the applicant that the particulars that were effectively formally given away this morning were relevant to arguments that had been raised on behalf of the respondent, and in particular, a contention that is seen to be advanced by the respondent to the effect that his duties had been discharged by the fact that he sent two experienced secretaries to oversee the execution and witness the second will.
- The very clear impression that I have is that there was a degree of diffusion in respect of the respondent’s response to this case, and whilst the applicant may well have amended the particulars at some time before today, it is nevertheless the case, as I have already said, that as far back as April of last year, and perhaps even earlier, the applicant had made clear the precise basis on which the case was being pursued. In any event, as I noted at the outset, the gravamen of the breaches alleged against the respondent were clearly articulated in paragraph 1.15 of the application.
- In all the circumstances, the Tribunal is not satisfied that exceptional circumstances have been shown for a departure from the mandatory provisions of s 462.
- Finally, I should note that the views reached by this Tribunal with respect to the characterisation of the conduct engaged in by the practitioner in this case have been fortified by the expert evidence given to the Tribunal by Mr Whitla. Mr Whitla’s opinion on the material with which he was briefed was that the respondent should have taken instructions for the will directly from the testator or in the alternative he should have verified those instructions directly with the testator. He described this as standard practice and what a competent and diligent practitioner would have done in preparing such a will.
- After being advised of the narrowing of the factual ambit of the case, Mr Whitla nevertheless confirmed that his opinion had not changed in that regard. Mr Whitla also confirmed in an email sent yesterday to the applicant, which was tendered in evidence before the Tribunal, that the issue is not that an intermediary provided instructions to the respondent “as that certainly does occur on occasions”. In other words, Mr Whitla conceded the existence of a practice of instructions being given via intermediaries. Rather, as Mr Whitla went on to observe:
The issue is that the intermediary in question stood to benefit from the instructions provided and as such Mr Lawson should, in my opinion, have independently verified those instructions directly with the testator.
- That expression of opinion by Mr Whitla completely aligns with the view independently reached by the Tribunal and as set out above in these reasons for decision.
- There will therefore be the following orders:
- There is a finding that the respondent engaged in unsatisfactory professional conduct.
- It is ordered that the respondent be publicly reprimanded.
- The respondent shall pay the applicant’s costs of and incidental to the application, such costs to be assessed as if the matter were proceeding in the Supreme Court of Queensland.
- Christopher John Brown shall advise the Tribunal and the respondent as to whether he wishes to pursue his notice of intention to seek compensation order by 4.00 pm on 15 April 2019.
- If Christopher John Brown advises that he wishes to pursue a compensation order, then the matter will be listed for directions on a date be advised by the Tribunal.
- Published Case Name:
Legal Services Commissioner v Ronald Aubrey Lawson
- Shortened Case Name:
Legal Services Commissioner v Ronald Aubrey Lawson
 QCAT 100
Justice Daubney P, Mr Scott Anderson, Ms Julie Cork
01 Apr 2019