The complainant’s grandparent died; the complainant and their sibling were beneficiaries under the will. The complainant was subsequently surprised to be informed that they and their sibling (the siblings) were apparently contesting the will. The executor, a family member, passed on to the complainant correspondence from a lawyer purporting to act for the siblings. The siblings had never met nor even heard of the lawyer. It transpired one of the siblings’ parents had instructed the lawyer to obtain information about the siblings’ inheritances. On finding this out, the complainant asked their parent to visit the lawyer again. At that visit, the lawyer said they could not provide information to the parent as the parent was not a beneficiary under the will. After that visit, the lawyer again wrote to the estate’s lawyers, purportedly representing the siblings.

The complainant complained about the lawyer’s conduct, complaining that the lawyer had acted without instructions or consent. They said the lawyer’s actions (in falsely advising the estate that the siblings were contesting the will) had a significant effect on their relationships with that side of the family.  They noted that the correspondence had caused delay in finalising the estate and additional legal fees for the estate.

In inquiring into the complaint, the Committee required the lawyer to provide his file. The lawyer advised that they had returned the file to the parent and the parent had subsequently destroyed it. The lawyer provided the Committee with the emails they had in relation to the matter.

After conducting a hearing on the papers, the Committee accepted that the lawyer had accepted instructions from the siblings’ parent to seek further provision from the estate on behalf of the siblings, without having received any instructions from the siblings. The Committee concluded that, in doing so, the lawyer had failed to act competently (r 3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Rules)) and also breached Rules relating to professional standards. That is, it found the lawyer had failed to promote professional standards, in breach of r 10, and engaged in conduct which brought the profession into disrepute, in breach of r 10.2.

The Committee commented on what it considered the lawyer should have done instead, saying that when the parent first approached the lawyer, the lawyer should have:

"…immediately advised [the parent] that [the lawyer] was unable to take any steps on behalf of the [siblings] without being instructed directly by them. [The lawyer] should have asked [the parent] to invite the children to contact him directly, in the event that they wished to instruct him to seek further provision from the estate."

The Committee determined that the lawyer’s breaches of the Rules amounted to unsatisfactory conduct under subs 12(c) of the Lawyers and Conveyancers Act 2006 (Act). It further determined that the lawyer’s conduct amounted to unsatisfactory conduct under subs 12(a) of the Act, being conduct that fell short of the standard of competence and diligence a member of the public is entitled to expect of a reasonably competent lawyer. It further determined that the lawyer’s conduct amounted to unsatisfactory conduct under subs 12(b) of the Act, being conduct that would be regarded by lawyers of good standing as being unacceptable.

In deciding penalty, the Committee noted that the lawyer had a previous disciplinary finding for acting without authority. It considered an uplift in fine was therefore “both necessary and appropriate”. It fined the lawyer $5,000. The Committee also ordered the lawyer to pay costs of $1,000 and to apologise to the siblings.

The Committee considered that there was an educative value in publication of its decision. It said it was concerned that the lawyer’s conduct “demonstrated a very casual approach to the taking of instructions”. It said further:

"There can be no shortcuts when it comes to taking instructions from prospective clients and obtaining authority to act for them. The determination serves as a reminder of the vital importance that lawyers take instructions directly from prospective clients, rather than via a third party, before purporting to act on their behalf."

On that basis, the Committee directed publication of an anonymised summary of its determination.