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Research Essay for 2021 Macquarie University...

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Research essay: A lawyer’s duty to the client is fundamental throughout the practice of all areas of law, including wills.1 Lawyers must avoid any conflicts of interests2 and make an assessment of the testamentary capacity of the client, along with other duties. The legal practitioner in the relevant case failed to fulfill the two aforementioned duties owed to his client.3 This essay will provide an examination of the practitioner’s errors regarding these duties and suggest the right course of action in such circumstances. This essay will also critically evaluate why such duties are significant in the context of legal professional responsibility.

When assessing the legal practitioners unsatisfactory conduct, the most prominent issues that arises is a conflict of interest. The nature of the relationship between the lawyer and the client is a big factor in this conflict. This relationship involved an aunt (client) and nephew with the relevant matter being the alteration of the aunt’s will. As the lawyer was a major beneficiary in this will,4 he should not have drafted the will for his aunt. The lawyer’s failure to identify such a conflict led the tribunal to decide that he had misconceived his obligations.5 The lawyer chose to stand by his own financial interests rather than satisfy the duty of undivided loyalty owed to the client.

As a point of reference for this case, the High Court decision of Maguire v Makaronis (1997) was mentioned.6 In summary, this case highlighted that compliance with relevant conduct rules is not enough to satisfy the fiduciary duties owed to the client.7 The Australian Solicitors’ Conduct Rules provides only a broad proscription against cases of conflict between the duties of the lawyer and interests.8 Referring back to the case at hand, the relevant

1 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW). 2 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) s 10-12. 3 Legal Profession Conduct Commissioner v Cleland [2021] 10 SASCA. 4 Ibid 4. 5 Ibid 10. 6 Maguire v Makaronis (1997) 188 CLR 449. 7 Ibid 124. 8 Legal Profession Conduct Commissioner v Cleland [2021] 10 SASCA 63.

conduct rules that apply to Mr. Cleland’s conduct is rule 12.1.9 In short, this rule states that, “A solicitor must not act for a client where there is a conflict between the duty to serve the best interests of a client and the interests of the solicitor…”.10 Not only was Mr. Cleland a major beneficiary of his clients will, but his wife was also made a beneficiary of this will in the case of his death.11 The Clause that highlights this was an inclusion made by Mr. Cleland without the knowledge of his client.12

Had Mr. Cleland identified this clear conflict, his best course of action would have been to inform his client of this conflict. If the client has any instructions for the lawyer once they have received this information, that should be considered by Mr. Cleland. If there are no instructions, the lawyer could have potentially referred the client to a fellow trusted legal practitioner to handle the matter. Given Mr. Cleland’s extensive legal career, this task would not have proved difficult.

The main idea regarding the significance of such a duty revolves around the lawyer’s loyalty. If a lawyer is incapable of placing the client’s needs as a top priority, he/she will not be able to operate to the best of their ability. This ties in with a lawyer’s duty to provide legal duties “diligently and competently”.13 Due to human nature, a legal practitioner’s loyalty may be compromised by a number of factors. The most common being that the practitioner has chosen to represent two clients, in a legal battle, at the same time, or an old client is currently in a legal battle with a new client.14 Naturally, the lawyer will be inclined to represent one client over the other.

This case, however, does not involve two opposing clients being represented by one lawyer. Instead, a lawyer’s own personal interests lead them to not represent the client completely within the bounds of the law. As lawyers are trained to identify such clear conflicts, Mr. Cleland has been deemed to have operated as his aunt’s lawyer without abiding by the

9 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 pt 2 s 12 (1). 10 Ibid. 11 Legal Profession Conduct Commissioner v Cleland [2021] 10 SASCA 4. 12 Ibid. 13 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 pt 2 s 4(3). 14 Ibid s 10, 11.

relevant conduct rules.15 This conflict of interest, involving financial incentive, is clearly identified in the solicitor’s conduct rules, which is assumed knowledge for Mr. Cleland.16 It stands as unfair that Mrs. Cleland is deprived of adequate legal services and advice due to her lawyer’s divided loyalties. The Australian legal system has minimised the occurrence of inadequate legal services by including such rules within binding legislations. Precedent also stands as a pillar for the significance of conflicts of interests. One notable case being the Law Society of New South Wales v Harvey [1976].17 Briefly, this case focused on the notion that lawyers should exercise absolute transparency regarding their own personal interests in a case. If such a conflicting interest is identified by the lawyer, the client should be notified immediately.18

Legal practitioners, along with identifying conflict of interests, are also expected to be able to identify weaknesses in a client’s testamentary capacity. This was a key issue in Legal Profession Conduct Commissioner v Cleland.19 Due to the considerable age of the client, it is clear that a test of her testamentary capacity is required. The attorney, Mr. Cleland, did not in any way conduct such a test. Accordingly, Mr. Cleland’s actions in this regard were considered, by the court, as professional misconduct.20 Rule 8 of the Australian Solicitors’ Conduct Rules states that “A solicitor must follow a client’s lawful, proper and competent instructions”.21 This rule insinuates that if client instructions come from an incompetent individual than a solicitor must not follow them. Instead, the lawyer would make a test of his/her clients’ testamentary capacity.

Mr. Cleland should have made clear his concerns about his aunt’s testamentary capacity. He then should have made an effort to assess her testamentary capacity. This effort may involve Mr. Cleland first making a preliminary assessment of his aunt’s mental capacity, such as looking for ‘red flags’ when conducting simple questioning with the client.22 This questioning 15 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015. 16 Ibid pt 2 s 12. 17 Law Society of New South Wales v Harvey [1976] 2 NSWLR 154. 18 Ibid 33. 19 Legal Profession Conduct Commissioner v Cleland [2021] 10 SASCA 4. 20 Ibid 8 (3). 21 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 pt 2 s 8. 22 ‘When a Client’s Mental Capacity is in Doubt; A Practical Guide for Solicitors’, Law Society of NSW (Online guide), (11 July 2012) s 2(2) < https://www.lawsociety.com.au/sites/default/files/2018-03/Clients%20mental %20capacity.pdf>

should involve open-ended questions, rather than questions warranting a ‘yes’ or ‘no’ answer.23 Mr. Cleland should also not ask any leading questions that suggest an answer to get a more accurate account.24 Had Mr. Cleland’s initial concerns escalated following this questioning, a formal clinical assessment of his aunt’s health would be wise as a next step.25 Following the clinical assessment, Mr. Cleland should make a final decision on his role as his aunt’s attorney. Though the conflict of interests was reason enough for him to withdraw himself as her lawyer.

This duty is vital in establishing a valid case for the client, by the lawyer. Hypothetically, if a client is not competent, the lawyer would not be able to take proper and reasonable legal action. incompetent clients may; provide false details, have a poor recollection of events, are in a hospital or aged care facility, and the client appears disoriented.26 All of these characteristics may lead to difficulty and loss, from a legal standpoint. The client may not understand what is in their best interests. They also may suggest a course of action that does fall in line with their interests. They, however, would not understand this due to their poorer mental capacity. In the case of d’Apice v Gutkovich - Estate of Abraham (No. 2) [2010],27 the testamentary capacity of an elderly woman regarding her wills was called into question. Certain details of her wills were also brought into questioning following the clinical assessment which deemed her to have moderate – severe dementia.28 This case has similar details to the relevant case at hand, however a definite assessment of Mrs. Cleland’s mental capacity would have been in deciding on Mr. Cleland’s conduct. A lawyer must always consider the duties he/she owes to the client. Legislation and precedent clearly establish the standard placed on lawyer’s when dealing with clients of all backgrounds. It is the responsibility of the lawyer to familiarise themselves with these duties to avoid cases of professional misconduct and unsatisfactory professional conduct.29 In the case of Legal Profession Conduct Commissioner v Cleland,30 it was deemed that Mr. Cleland 23 Ibid s 6 (5). 24 Ibid. 25 Ibid. 26 Ibid s 5 (7). 27 d’Apice v Gutkovich - Estate of Abraham (No. 2) [2010] NSWSC 1333. 28 Ibid 4. 29 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015. 30 Legal Profession Conduct Commissioner v Cleland [2021] 10 SASCA 4.

had conduct actions of professional misconduct and unsatisfactory professional conduct. These acts involved; not assessing the testamentary capacity of his 91-year-old aunt,31 and not acting according to a lawyer’s expectation regarding the clear conflict of interest.32 Mr. Cleland should have removed himself as his aunt’s lawyer as a remedy for the conflict of interest where he had financial involvement in the relevant legal issue. As a remedy for the lack of assessment of the client’s mental capacity, Mr. Cleland should have conducted a preliminary test, and then ensured a formal clinical assessment was conduct before deciding on his role as her lawyer.

31 Ibid 8 (3). 32 Ibid 10....