Port Mac practitioner found guilty of professional misconduct
A Port Macquarie lawyer has been found guilty of professional misconduct after she wrote a number of wills between 2000 and 2009 for a “close friend” despite the fact “she ought to have known that her conduct was in breach of the rules or she was recklessly careless as to whether her conduct was in breach of the rules.”
Ms Joan Margaret Pierpoint admitted to breaching rules 10.1.1, 11.1 and 11.2 of the Revised Professional Conduct and Practice Rules 1995 (Solicitors’ rules), in creating the wills for her client, who Ms Pierpoint described as “an independent and determined woman,” who subsequently passed away in 2012, aged 94.
In her submission, the sole-practitioner spoke of her regard for the client as a “member of the family,” and said the pair “shared weekly coffees, dinners, outings and important anniversaries.”
In the occupational division of the NSW Civil and Administrative Tribunal, the Legal Services Commissioner and Ms Pierpoint agreed on the material facts of the case.
Both parties agreed that Ms Pierpoint breached rule 10.1.1 of the solicitors’ rules when she prepared 11 wills and codicils between August 2000 and April 2005, she breached rule 11.1 when she failed to inform her client in writing of the matters set out by rules 11.1.1 to 11.1.3 before signing seven wills between August 2000 and May 2003, and that she also breached 11.2 and 11.2.1 by preparing 12 wills between 2002 and 2009.
Included in these rules are the prohibitions against practitioners allowing the interests of the practitioner to conflict with those of the client in any dealings, and the informing of clients in writing where practitioners receive instructions from a person to draw a will where they are appointed as executor before the client signs.
The statement of agreed facts also noted that Ms Pierpoint “should have declined to prepare the wills and should have referred her client to independent legal advice”, in accordance with rule 11.2.1.
The Legal Services Commissioner submitted “that conduct in relation to the drawing of wills is regulated by the Solicitors’ Rules and in this matter, the respondent drew fifteen (15) separate wills and codicils for her client, who was clearly her close friend but also a person who knew the respondent as a solicitor.”
“The wills conferred substantial benefits upon the respondent. The size of those benefits was considerably larger in later wills and codicils, so that a pattern of growing generosity by the client to the respondent was apparent.”
The applicant’s submissions continued: “In 2009, the client became friendly with another couple and she made a new will in which bequeathed her entire estate to them. In 2013, there were contested Probate proceedings, which resulted in the beneficiaries under that will making the current complaints against the respondent. Ultimately, probate was granted in relation to the will that was prepared in 2012.”
The submission said the importance of the Solicitors’ Rules played out in “the circumstances of this matter because if the respondent did not draw the wills for her client, there would have been very little basis for any complaint by the beneficiaries under the 2009 will.”
Since the rule breaches were agreed upon by Ms Pierpoint and the Legal Services Commissioner, the issue for determination by the court was “whether the solicitor’s conduct is properly characterised as professional misconduct or as unsatisfactory professional conduct.”
In its consideration of the case, the tribunal held the respondent “did not take any steps to educate herself regarding the rules during the period from 2000 to 2009, during which she engaged in conduct that contravened rules 10 and 11 on multiple occasions.”
Ms Pierpoint had contested that her conduct was not to be found guilty of professional misconduct but did not dispute a finding of guilty of unsatisfactory professional conduct; however, these submissions were not accepted by the tribunal, which continued:
“The respondent has conceded, and in our view properly so, that she was recklessly careless in failing to inform herself the contents of the Solicitors’ Rules prior to and during the period of 9 years in which she accepted repeated instructions from her client to draw the multiple wills and codicils.”
The tribunal was satisfied Ms Pierpoint did not act dishonestly, and accepted “the solicitor’s conduct involved an involved an error of judgment on her part.”
“But this error would not have occurred in the first place if the solicitor had achieved the required standard of competence and diligence and expected of a legal practitioner by informing herself of the fundamental obligations required of her under the Solicitors’ Rules.”
In finding Ms Pierpoint guilty, the tribunal ordered the respondent be reprimanded, fined $2,500, and pay the costs of the Legal Services Commissioner as agreed or assessed.