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WA solicitor guilty of professional misconduct relating to elderly client
A West Australian solicitor has been found guilty of professional conduct relating to an elderly client’s capacity to make complex decisions.
Naomi Neilson
John Wesley Butler, director with Butler’s Lawyers, was found guilty of professional misconduct in the State Administrative Tribunal for causing his firm to receive $97,747.19 from an 89-year-old woman when there “existed in his mind a real doubt as to her capacity”.
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During the period of offending, an older adult psychiatrist was of the opinion the client did not have the capacity to understand detailed or complex legal or financial matters, including a costs agreement.
The implications of continuing to bill the client in light of those concerns were considered by Mr Butler, and “as the most experienced practitioner and principal of the firm”, he was party to a decision the firm could not act for the client without a second opinion.
Despite this, work and billing were recommenced.
“Having considered all the matters raised by the parties, we have come to the view that the conduct amounted to a substantial and consistent failure to reach or maintain the reasonable standard of competence and diligence expected of an Australian legal practitioner,” the State Administrative Tribunal found.
Mr Butler told the tribunal he was satisfied the client had the capacity to provide instructions and, on that view, he was “entitled to then be paid for the work carried out in accordance with those instructions”.
The tribunal did not believe this evidence.
The tribunal also took issue with Mr Butler’s habit of “disassociating himself” from conducts or statements made at the time of the misconduct, “which were damaging to his case”.
When documents revealed steps taken by the firm that were unhelpful to Mr Butler’s case, he tried to cast responsibility on others, including a junior solicitor who had specifically asked Mr Butler to become involved in the matter because he had more experience.
The tribunal found even if Mr Butler did not agree with the expert opinion as to the client’s capacity, “it must have caused him to have, at the time, real doubts as to [the client’s] capacity”.
The members said in coming to their decision, they have also noted it was not alleged, and that they therefore did not find, that the firm "did not carry out the work of which (the client) was billed and for which she paid or that she was overcharged for the work".
"For those reasons, the tribunal does not find the practitioner's conduct is to be regarded as disgraceful and dishonourable," the members said.
Editor’s Note: Minor changes have been made for clarification only.
