Tribunal finds conflicting capacity advice no excuse for solicitor’s slow compliance

The Queensland Civil and Administrative Tribunal has delivered a decision touching on the professional obligations binding practitioners when matters involve a client with borderline or otherwise declining capacity.

Though the proceedings were grounded in the practitioner’s failure to provide files in a timely manner, the Tribunal’s peripheral inquiry into the appropriate management of client capacity makes the decision a notable case study of rules 4.1 and 8.1 of the Australian Solicitors’ Conduct Rules (ASCR).

The respondent, a solicitor admitted in 1982 and principal of his firm, appeared before the Tribunal following a discipline application brought by the Legal Services Commissioner.¹ The sole charge brought against him concerned a 16-month period where he failed to comply with the complainant’s solicitors requests for the client’s safe custody documents and files, thereby departing from the reasonable standards of competence and diligence required of legal practitioners.

The Commissioner contended this constituted unsatisfactory professional conduct, with Justice Bradley ultimately concurring.

The circumstances that would eventually see the practitioner before the Tribunal began in 2015, where his future client authorised both his son and daughter to act on his behalf under an enduring power of attorney (the first EPOA).²

Five years later, the practitioner was retained by the client. A month into the retainer, he received instructions from the client to revoke the first EPOA and appoint his daughter only (the complainant in the matter), divorce his wife and prepare a new will.³

The practitioner sought to confirm his client’s capacity and received a report from the client’s regular general practitioner (March 2020 opinion) that unequivocally affirmed his capacity not only for general legal decisions, but in relation to signing an EPOA.⁴

Following the March 2020 opinion, the client and the complainant signed a second EPOA. Shortly after, the practitioner learned of the complainant’s concerns around the client’s legal capacity, accompanied by the first request for documents and a second medical opinion (August 2020 opinion) stating the client lacked capacity to make ‘complex decisions on his own’.⁵

Faced with two conflicting medical opinions, the practitioner opted to contact the client via phone, who, from the hospital’s rehabilitation ward, reported he had never encountered the authors of the second medical opinion.⁶ Stating the client seemed ‘perfectly clear to him’, the practitioner rejected the August 2020 opinion, regarding it ‘defective’ for its failure to address statutory criteria.⁷

Even following a ‘definitive’ March 2021 opinion from a general practitioner who confirmed the client lacked testamentary capacity due to dementia, the practitioner delayed a further seven months before making the documents available in December 2021.⁸

Critical of the practitioner’s extended delay in providing the requested documents, the Tribunal rejected the practitioner’s defence that he was acting with vigilance due to concerns of elder abuse.⁹

While the QLS Guidance Statement No.30 notes that an inquiry into client capacity is appropriate when transferring files, the fact that a file transfer may not be in a client’s best interests does not alone permit delaying transfer.¹⁰ It is also important to note that practitioners themselves may be inherently conflicted in such situations where they are naturally motivated to continue acting for the client.

In this case, Justice Bradley noted that if the respondent had concerns about the August 2020 opinion, he was entitled to ask the complainant for further evidence of incapacity, but he did not do so. The respondent also was aware of the client’s fall, hospitalisation and the March 2020 opinion being provided by a Rehabilitation Specialist. This was sufficient to put the practitioner on notice of impaired capacity, and there was ‘no call’ for the practitioner to conduct his own inquiries.¹¹

Ultimately, the practitioner’s sustained defence of his client’s capacity breached rule 14 of the ASCR, which requires a practitioner to hand over client documents to an authorised person ‘as soon as reasonably possible’.¹²

While noting the practitioner’s long, unblemished career, the Tribunal emphasised the need for deterrence given his insistence at the hearing that he had ‘acted reasonably and appropriately at all times’.¹³

The practitioner was reprimanded for unsatisfactory professional conduct, fined $2,500 and ordered to pay the Commissioner’s costs.¹⁴

For more information on the transfer of client files, please see the QLS Guidance Statement No 30: Transfer of Files.

1. Legal Services Commissioner v Biggs [2026] QCAT 20 (‘Biggs’). ↩︎
2. Ibid [11]. ↩︎
3. Ibid [13]. ↩︎
4. Ibid [14]. ↩︎
5. Ibid [18]–[20]. ↩︎
6. Ibid [21]. ↩︎
7. Ibid [48]. ↩︎
8. Ibid [60]–[62]. ↩︎
9. Ibid [46]–[47]. ↩︎
10. Queensland Law Society, Transfer of Files (Guidance Statement No 30, 23 February 2022). ↩︎
11. Biggs (n 1) [55] – [57]. ↩︎
12. Ibid [64]. ↩︎
13. Ibid [68]. ↩︎
14. Ibid [74]. ↩︎