As I mentioned in a previous post, the fact situation and outcome of Conduct Reviews are published anonymously on the Law Society website in our Conduct Review Database. A Conduct Review is a face to face meeting with a member who is the subject of a complaint that raises conduct issues ‘close to the line’ of conduct unbecoming. The meeting is meant to assist the member identify and accept responsibility for the conduct that caused concern, to learn from the complaint and Conduct Review, and to change their conduct to proactively prevent similar situations in the future. The Conduct Reviews are published to provide guidance to the profession. Below is a recent Conduct Review:
Category: Inadequate Communication/Inadequate Representation
Practice Area: Wills & Estates
Code: 3.1-2, 3.2-1
E-cite: 2017 SKLSCR 2
Date: August 30, 2017
The Member represented the client in an estate matter. The client retained the Member to deal with the contested estate of the client’s father.
The client’s sister was excluded from any benefit under the Will last signed by her father, and brought an application alleging duress and/or undue influence and questioned his testamentary capacity at the time.
The client alleged that there was inadequate communication by the Member to the client about the Estate litigation, and was concerned regarding the adequacy of representation at the Chambers application. The client suggested that the matter was sent to trial because the Member did not file material with the Court that was available to them.
The matter came to Chambers after several delays. The function of the Chambers hearing is to determine if there is sufficient merit to the challenge of the Will. In this instance, the testator was hospitalized with a heart attack and was in an induced coma. After awaking from the coma, while still in the hospital he suffered a further cardiac arrest, and executed a Will approximately one week after wholly in favour of the client and wholly excluding her only sibling. The client’s father passed away shortly after executing this Will.
The Court ordered that the matter be sent to a trial. The Court commented that additional information would have assisted and even been expected. The Court also commented on the multitude of conflicting information before it. There was significant animosity between the siblings and while the client cited many potential reasons for being made the sole beneficiary, it is the Court’s function to ensure that those are also the reasons of the testator.
The Conduct Investigation Committee (the Committee) felt that the Member allowed his indecision on strategy going forward to result in delays and accompanying poor communication with the client. The poor communication also led to a perception by the client that the matter was not fully or adequately presented to the judge in Chambers. The Committee also stated that it is not the function of the Committee to second guess the decision of the Court; however, the Committee felt that given the circumstances, it was not surprising that the Court made the decision to send the matter to trial. The Committee had some concerns regarding the comments of the Court in relation to information that was not before it; however, the Committee also emphasized that there was little chance this matter would not have gone to trial even had the requested materials been available to the Court. The Committee held that there was insufficient evidence to make a finding of conduct unbecoming by the Member.
However, the Committee recommended a “Conduct Review” to discuss the Member’s conduct on the file. The Conduct Review Committee met with the Member and reviewed the report of the Conduct Investigation Committee. They spoke candidly about its concerns with the Member’s client communication and client expectations arising from those communications, the content of the affidavits filed in the Chambers application, the concerns raised by the Court regarding material that may have assisted the Court but was not provided to it, why the Member did not seek assistance from one or more lawyers in his firm, and the Member’s action of ignoring the client’s request for an invoice.
The Conduct Review Committee is optimistic that the Member has learned from this experience and that he will not make the same type of mistakes in the future.