Mr McCardle was the administrator of an estate. The complainant (who was a beneficiary of the estate) approached Mr McCardle with concerns about the time it had taken to distribute the remaining estate funds to the final beneficiaries. At a meeting to discuss this, and other related matters, Mr McCardle offered to pass administration over to the complainant by way of deed (the deed). The deed indemnified Mr McCardle and his firm from any liability in relation to the estate work and imposed the obligation to distribute the funds in accordance with the will. Mr McCardle also sought payment of an ‘estate fee’ of $12,500 over and above the time and attendance charges the estate had already paid. When the complainant questioned this fee, Mr McCardle suggested the estate pay $20,000 to another named beneficiary,a local church of which Mr McCardle is a member, in lieu of the fee. The complainant signed the deed, paid $20,000 to the church as suggested and distributed the remaining estate funds among himself and family instead of the five charities nominated as beneficiaries in the will.  

In determining liability, the Tribunal considered Mr McCardle was not entitled to the estate fee and that he had breached his duty to protect his client’s interests (the estates’ interests) by failing to ensure estate funds were distributed in accordance with the will. The Tribunal considered Mr McCardle should have ensured the complainant was “properly aware and instructed in administration of the funds” and found Mr McCardle’s conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer and therefore amounted to unsatisfactory conduct. It noted Mr McCardle’s conduct demonstrated an element of recklessness but considered it did not meet the threshold for the more serious findings of misconduct or negligence or incompetence which reflects on fitness to practise or tends to bring the profession into disrepute. 

In terms of penalty, the Tribunal determined Mr McCardle made significant errors that required firm penalty and when viewed in light of his modest disciplinary history, demonstrated a departure from standard, safe modes of practice. The Tribunal noted that Mr McCardle had retired from practice but cautioned that it would “not give a message that it is acceptable or forgivable (however understandable) for practitioners to become dangerously lax in their last months of practice.” It considered censure necessary to denounce Mr McCardle’s conduct, deter other practitioners and assure the public that significant shortfalls in practice will result in meaningful consequences. Mr McCardle was censured, fined $8,000 and ordered to contribute to 50% of the Committee and Tribunals’ costs.