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Introduction Legal practitioners are held to necessary strict standards, duties, and obligations. The upholding of these standards is essential within the Australian legal system, and it is a practitioner’s responsibility and requirement to ensure that their actions are not in breach of said standards. The law of professional responsibility, which entails these standards, is designed to ensure a solicitor upholds their duty to the community, their client, the justice system, and justice itself. These duties are outlined for legal practitioners within New South Wales through the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.1 One such duty is a solicitor’s fundamental ethical obligation and duty to act in the best interests of their client, as well as to deliver legal services competently, diligently, and as promptly as reasonably possible, seen in rule 4.1,1 and 4.1.3 respectively.2 An example of clear misconduct and a failure to meet the aforementioned duties is evident within the case Legal Profession Conduct Commissioner v Cleland.3 Within this case, the Court held Cleland explicitly failed in their duty as fiduciary, and in doing so breached rule 4 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.

Cleland exhibited incompetence, ignorance of his duties, a disregard or indifference to the client’s best interests, and a failure to deliver adequate legal services that served said best interest, through a variety of actions, such as the addition of his wife as a benefactor in the case of his death, which was added without informing the client. This is furthered in his failings to give even a base level of legal advice to Ms Cleland, and in his failing to assess the testamentary capacity of Ms Cleland. The case of Legal Profession Conduct Commissioner v Cleland is a foremost example of how legal practitioners can fail in their duties, and the importance of outlined duties and the law of professional responsibility.4

Rule 4- Fundamental Ethical Duties 1 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) 2 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) s 4.1.1, 4.1.3 3 Legal Profession Conduct Commissioner v Cleland [2021] SASCA 10 4 [2021] SASCA 10

One of the principal responsibilities of a legal practitioner is that of their responsibility to their client. This responsibility is named in numerous subsections of legislation and solicitor uniform codes, but perhaps most succinctly in Rule 4.5 This duty was clearly breached by Cleland in his actions as fiduciary to Ms Cleland, his aunt. Rule 4.1.1 compels a practitioner to act in the best interest of their client.6 Cleland routinely failed to do so, evident in his drafting of Clause 9(b) in the October 2015 Will, which provided that if the practitioner did not survive Ms Cleland or did not inherit from Ms Cleland for any other possible reason, then essentially the entirety of her estate, after necessary payment of debts, would be left to the practitioner’s wife, Valerie.7 Cleland was not directed or instructed by Ms Cleland to make any such change; thus, it is evident that the practitioner was not acting in the best interest of his client. The Tribunal found that this action was “extraordinary”8, a testament to the degree of unprofessionalism that Cleland followed. Rule 4, as stated in the Review of the Australian Solicitors’ Conduct Rules 2018, “…set out the fundamental ethical duties of a solicitor”.9 The degree to which this is a failing of duty is evident in the research done regarding undue influence in the composition of a will in elderly individuals by the University of Athens in Testamentary Capacity Assessment: Legal, Medical, and Neuropsychological Issues.10 This research paper states that “The composition of a will has to be done with no pressure from the outside.”11 This is particularly important in cases where an individual, at the time of the will making, is no longer capable of defining his or her intentions clearly. The paper furthers this with “a patient may not resist the influence or control of other people and freely decide on the distribution of his or her property.”12 Cleland, in his actions, took advantage of Ms Cleland, who was potentially in a position unable to resist his influence and control, to act outside of her interests. The upholding of this duty is paramount to the administration of justice, and it is arguably impossible for a solicitor to fulfill their fundamental duties without strictly adhering to this rule.

5 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) s 4 6 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) s 4.1.1 7 [2021] SASCA 10, 2 [4] 8 [2021] SASCA 10, 4 [13] 9 Law Council of Australia, 2018. Review of the Australian Solicitors’ Conduct Rules 2018 10 Panagiota Voskou et al, "Testamentary Capacity Assessment: Legal, Medical, And Neuropsychological Issues" (2017) 31(1) Journal of Geriatric Psychiatry and Neurology. 11 Panagiota Voskou et al, "Testamentary Capacity Assessment: Legal, Medical, And Neuropsychological Issues" (2017) 31(1) Journal of Geriatric Psychiatry and Neurology. 12 Panagiota Voskou et al, "Testamentary Capacity Assessment: Legal, Medical, And Neuropsychological Issues" (2017) 31(1) Journal of Geriatric Psychiatry and Neurology.

Additionally, Cleland further breached Rule 4 through his failure to provide Ms Cleland with even a basic level of legal advice in regard to her instructions regarding the October 2014 Will.13 In doing so, as the court held, he “…fell short of the reasonable standard of competence and diligence that is to be expected of a legal practitioner”.14 This constitutes a clear breach of 4.1.315 and marks a failure of the practitioner to uphold the ethical standards and duties Cleland was bound by. The failure to provide even a basic level of legal advice constitutes a clear failure of his duties and his very role as a lawyer. The importance of this duty can not be understated; it is imperative in the basic function of a legal practitioner to provide competent advice, and without such a duty being upheld the standard of legal practitioners would be significantly less uniform or enforced; a clear issue considering the importance of lawyers in society and the degree to which their professional advice is required by members of the public who are unskilled in the legal field. This is seen in the Law Institute of Victoria’s Solicitor's duty: The Victorian Solicitor's Conduct Rules, which states that competence is a fundamental duty of a solicitor, as it may “diminish the public confidence in the administration of justice or bring the profession into disrepute.”16 A similar example of a breach of 4.1.317 can be seen in his failure to assess Ms Cleland’s testamentary capacity adequately, despite numerous indications that she was not of capacity as outlined in the Law Society’s 2012 Guidelines on Testamentary Capacity.18 Cleland, who self-admittedly confessed during the case that he was uninformed in the process of drafting wills and the duties and guidelines associated with acting as a fiduciary, should have made himself aware of the appropriate guidelines on testamentary capacity. By doing so, upon the occasion that Ms Cleland informed him that she was unable to recall the terms of her 2011 Will, and why she wished to change terms of her 2014 Will, Cleland would have been aware that this calls into question Ms Cleland’s testamentary capacity and would have been able to make a discretionary judgement regarding if he should continue acting as her fiduciary. Instead, Cleland made no enquiries into this matter whatsoever, showing incompetence and lack of diligence surrounding his role as a fiduciary, potentially meaning that Ms Cleland was making changes to her will without the capacity to do so. Testamentary capacity is essential to consider in the role as fiduciary, as it ensures that 13 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) s 4 14 [2021] SASCA 10, 2 [2] 15 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) s 4.1.3 16 October 2014 88 (10) LIJ, p.36 17 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) s 4.1.3 18 Law Society of South Australia, Law Society’s 2012 Guidelines on Testamentary Capacity 2017

potentially vulnerable people are unable to make significant changes to their Will, as they may be unaware or unable to adequately comprehend the degree to which these changes will affect their estate. Thus, Cleland failed to reach numerous duties outlined by the Solicitor Conduct Rules19 and the Law Society’s 2012 Guidelines on Testamentary Capacity20, signifying clear lack of competence and diligence.

Such guidelines extend back to common law cases from centuries ago; the Banks v Goodfellow21 criteria, which outlines that “The person must be capable of understanding: the nature and effect of making a will”, is an example to the degree to which testamentary capacity guidelines have existed in the forefront of fiduciary duties. The incompetence for Cleland to be ignorant of such guidelines, despite how cornerstone they are when acting as a fiduciary, particularly to an elderly client like Ms Cleland, is a severe breach of duty. Whilst this was, as the court held, “…neither deliberate nor dishonest. It was… incompetent”, incompetence is arguably just as much of a failing of a practitioner as unethical action.22 Gino Dal Pont asserts in Ethics column: Unethical or incompetent - does it matter? that, whilst “It cannot be assumed that matters of “ethics” inhabit the same sphere as those of “competence”, that the public is as much in need of protection from incompetent lawyers as unethical ones.23 Thus, the duties asserted in Rule 4.1.3 are vital to the protection of the public.24 Conclusion The law of professional responsibility is essential to the maintaining of justice within the Australian legal system. The existence of various duties that bind legal practitioners ensure that their responsibility to the administration of justice, the public and justice itself is upheld. The actions of Cleland outlined in Legal Profession Conduct Commissioner v Cleland25, namely the breaches of Rule 4 of the solicitor code constitute clear failure of a legal practitioner to adhere to these guidelines and highlights the importance of the existence of

19 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) 20 Law Society of South Australia, Law Society’s 2012 Guidelines on Testamentary Capacity 2017 21 Banks v Goodfellow (1870) LR 5 QB 549 22 [2021] SASCA 10, 75 [17] 23 "Unethical Or Incompetent - Does It Matter? - Law Institute Of Victoria", Liv.Asn.Au (Webpage, 2021) . 24 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) s 4.1.3 25 [2021] SASCA 10

such guidelines to protect those vulnerable parties, the respect and ethical foundation of the legal practice, and the administration of justice. 26

26 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) s 4...