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SA lawyer fined $50k, reprimanded over drafting will for aunt
A South Australian practitioner will be reprimanded, fined and suspended temporarily after the state’s major court found he had engaged in professional misconduct when he drafted two wills for his aunt of which he was a major beneficiary.
Naomi Neilson
David Cleland, the nephew of legal practitioner Pamela Cleland who has frequently been praised for being a “trailblazer” in the profession, will pay a $50,000 fine but will not be removed from the roll of practitioners given his misconduct when drafting the wills and a codicil was labelled “ignorant” but not “deliberate or dishonest”.
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Mr Cleland told the Supreme Court that he and his aunt had developed a close family relationship and the two had spent lengthy periods of time together before she took up residence in a nursing home. He added that Ms Cleland had told him that he was the “only one” she could trust during a conversation about drafting the wills.
“I well recognise now that my close relationship with [my aunt] and care for her [had] blinded me to the fiduciary obligations which I owed to her as her solicitor when giving advice on and drawing the wills,” Mr Cleland said. “I regret that I allowed my longstanding and close relationship… to obscure the fiduciary obligations.”
Mr Cleland was found guilty of professional misconduct on all seven charges put to the tribunal, which included that he did not identify the conflict of interest that arose when preparing the wills and for failing to provide legal advice to his aunt.
“His wrongdoing was neither deliberate nor dishonest. It was ignorant, cavalier and incompetent. It was, moreover, confined to one client in a six-month period. It occurred in the context of a close family relationship, in an unfamiliar area of practice in an otherwise unblemished and creditable 20-year-career as a legal practitioner,” the Supreme Court judgement read.
The court added that while Mr Cleland’s “inexcusable ignorance” of his duties was serious, “it is not as serious as where a solicitor is fully aware of the relevant rules but deliberately and flagrantly breaches them”.
Under these circumstances, Mr Cleland has been reprimanded, must pay the fine, has an agreed prohibition on practice in wills and has been imposed a six-month period of suspension.
The entire judgement is available on AustLII: Legal Profession Conduct Commissioner v Cleland [2021] SASCA 10 (17 March 2021).
