Western Australia’s Bleak House Case is a Prosecutorial Flop

Legal Practitioners Complaints Committee v B&M [2005] WASAT 217

No doubt Dickens’s Bleak House is being dusted off in many a household glued of a Sunday evening to the BBC’s new dramatisation which finished in Australia yesterday. In it, lawyers squabble over a disputed estate in the courts of Chancery in the matter of Jarndyce v Jarndyce for generations until a new copy of the will is found which determines all issues, just as the estate is reduced to nothing by lawyers’ fees.  Life imitates art a little bit in this case of an estate whose administration took almost 50 years because of the transposition in the will of the Christian and middle names of a beneficiary — except that the respondent lawyers did not suffer any penalty for tardiness, and certainly did not take a bullet through the heart like Tulkinghorn. The last 15 years of the estate’s administration gave rise to disciplinary charges which seem to have been based on the curious proposition that if partners ignorant about the mysterious world of probate law had been involved, the former partner’s stroke of genius in working out what had happened would have come about a lot sooner. I say curious because the employee solicitor and former partner seems to have been acknowledged by everyone as having had a very long experience of almost exclusively complex probate work.

The testatrix died in 1958. By 1970, her two children were dead too, along with her executor. Her 19 year old grandson was alive and well near Albany, but could not be found because his first two names had been transposed in the will.  For 23 years, all that was done was to rent the testatrix’s house out and manage the receipts on behalf of the estate. Thirty-three years into the retainer, an electoral roll search was performed.  Thirty-eight years into the retainer, a letter was sent to the Registry of Births, Deaths and Marriages. Then a second electoral roll indicated that a person with the same names, but in the transposed order existed, and a memo to one of the respondents stated his address. That was the grandson, but the lead was not followed up. The rent in 1998 had not been raised from $6 a week set years before. Forty-two years into the retainer, a search was conducted at the Registrar General’s office.

There is a suggestion in the Tribunal’s reasons of a botched prosecution. Only two partners of the firm in question were prosecuted. The charges particularised neglect only from 1986 when a partner of the predecessor firm had retired and taken the file home with him for a few years died, and the file returned to the newly constituted firm. The reasons say:

“89 One might wonder why the solicitor handling the estate file during the 28 years between 1958 and 1986 had not then taken the steps necessary to locate the grandson. Up until 1970, the sons of [the testatrix] were still alive, as was the Executor of her will. Inquiries of family members during those years surely would have helped to identify the true beneficiary and discover his whereabouts.
90 However, the Tribunal is not required to consider these questions as the Complaints Committee has not concerned itself with the conduct of any legal practitioner prior to 1986. It is only concerned with what happened when the file relating to the estate of the late [testatrix] was returned to [the firm to which the two partners belonged]. Additionally, the Committee is only concerned with the conduct of [the two partners], not all partner[the firm]; and not with the conduct of [former partner and wills and estates specialist who had the conduct of the matter as an employee].”

The charge against one partner was dismissed on the basis that he never assumed responsibility for the file, and his contact with it was only ephemeral.  In relation to the other partner, the Tribunal found:

“96 While the case can be pressed that [the partner] should perhaps have more closely supervised the file and taken a much more interventionist role in its conduct and management than he did, the fact of the matter remains that [the employee] had the conduct of the file. [The employee] was a very experienced solicitor in the areas of estates and wills and had previously been a partner of the firm. He had practiced almost exclusively in these areas for many, many years.

97 The Tribunal does not have that degree of satisfaction on all the evidence that [the partner] neglected the proper supervision of his employee, the senior solicitor, … in the conduct of the file by not becoming more closely involved in the conduct of the file.”

98 No doubt more could have been done, and should have been done, to discover the whereabouts of the missing beneficiary. However that may be, it does not, in the Tribunal’s view, mean that [the partner], amongst the other partners of the firm, was guilty of neglect in the practice of the law by reason of his particular involvement in the file at various stages.”

So the prosecution failed, but the Tribunal said this under the heading “Lessons to be Learned”:

“102 … Partners of firms should not overly rely on ‘corridor discussions’ to discover what is happening in the conduct of files held by employed solicitors, including experienced employed solicitors, and other partners.

103 It should be thought necessary in a firm of any size for the partners to have systems in place that enable them to gain a proper understanding of what files the firm is responsible for handling and what the state of progress is of the file. In that way, timely advice might be given by a partner in relation to the conduct of a file.

104 A question also arises whether special supervisory procedures are required where the partners of a firm do not profess any special knowledge or skill in areas of the firm’s legal practice. In this case, neither [partner charged] claimed any particular experience or knowledge in the law relating to probate, wills and administration. It seems no other partner in the firm did either. They relied almost exclusively on [the employee] to act professionally in the administration of his estate files. This was not a desirable state of affairs.

105 Where a firm wishes to practice in areas of the law in which the partners profess no special knowledge or skills, additional responsibilities must necessarily accrue to them if they undertake work in those areas. Ultimately, a firm might need to question whether it should continue to offer services to the public in areas of law in which the principals of the firm profess no special knowledge or skill.”

The Tribunal cited High Court authority for what might be thought trite:

“21 … the substantive law as at the date of the events in question governs whether or not the practitioner is in breach of his professional obligations: Maxwell v Murphy (1957) 96 CLR 261 at 267.”

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