A I McLean Pty Ltd v Hayson [2008] NSWSC 927

I still think it’s contemptuous not to turn up at a hearing though (unless one has a good excuse…I leave that doorway open to the solicitors in question).

I tend to think that a deliberate decision not to attend a hearing should be a professional offence.

Of course it looks bad that no-one turned up and is not a smart legal strategy.

My complaint about your post was not to disagree with the above observations, but your other comments made, as you say, as an “objective observer” (whatever that means). I agree we do not know what happened so best not to speculate.

I am surprised, though, when solicitors do not show in the Tribunal to answer complaints of professional negligence or unethical conduct. It happens occassionally and it is not a good look either in the case or more generally. It puts the Tribunal and Counsel assistting in a difficult situation too.

A question: could a solicitor’s decision to deliberately not attend a hearing in the Tribunal be in itself a professional offence?

But I still think that it looks pretty bad that no one from the firm turned up, even if the individual solicitor involved was suffering from depression or illness. Surely they could even get someone else to represent them?

It is true that research has shown that people who commit trust defalcations and other breaches are not incompetent, just depressed and struggling, so it may be that this solicitor had problems of that sort. Who knows what happened? That’s the point, we just don’t know.

Avoiding the problem just makes the problem so much worse. The firm doesn’t get to put its side of the story, and looks like it doesn’t care about the problem. The member has to make a judgment with only one side of the story, and of course, that is the side which he came down upon. Whereas if someone from the firm had turned up and explained their side of the story, the firm’s actions may have been entirely understandable.

The retainer in this case seems broader than simply to obtain probate in Victoria. Member Butcher says that “the applicant gave instructions concerning the assets of the estate and was told that the costs of obtaining probate in Victoria would be $2,800.00.” This would suggest a retainer to advise as well as obtain probate.

Further, even if a client instructs a solicitor to perfom a specific task then his or her duty is probably broader that exercising reasonable care in performing the task. Justice Deane in Hawkins v Clayton (1988) 164 CLR 539 at 579 saw the duty as extending beyond the specifically agreed profesional task to include foreseeable risk of economic loss. This is in keeping with the general trend of finding a general duty of care rather than a duty to perform a speficic task.

If a retainer was restricted to a specific task on a client’s instructions and an issue arose about whether the solicitors were negligent in not advising that a different task be undertaken there would be a strong argument that even if they had the client would not have relied on the advice. A client who wants only a specific task performed is a rare one and normally of a set mind or a repeat player in an area they know well.