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Sir Terence O'Rort
14 October, 2009  
Client care

The incoming president of the Queensland Law Society shows the way on client care … If the punter grumbles, just open your own wallet and all will be well … Triumph of the will over early misadventure … Bravo … Sir Terence O’Rort reports


imageBrisvegas punters can rest easy now that the annual Queensland Law Society elections have been decided. (Results HERE.)

Unsurprisingly, vice-president Peter Eardley becomes the president-elect of the creaky old QLS.

Under QLS rules the vice-president “succeeds” to the position of president at the end of the president’s term.

The QLS thoughtfully informed the profession by email on September 4 that Eardley was the only nomination for the position of president.

The truth is that all the important council positions are held tightly between a group of the usual characters, mostly small firm and sole practitioners who have tirelessly showed-up at QLS meetings for years, before ascending to the glittering prize of the presidency.

Apart from ready access to QLS bar, society presidents frequently are called to higher things.

Joe Pinder and Ray Rinuado are both state magistrates, former Madame President Julie-Ann Schafer is Chairperson of the Consumer and Commercial Tribunal and former young lawyer of the year, Michael Baumann, is a Federal Magistrate.

The QLS website council profile of Peter Eardley shows his commitment to the cause, with membership of dozens of committees, sub-committees and QLS satellites – including the Supreme Court Library Strategic Directions Working Party.

For years now the QLS has been rabbeting on about “client care”, which seems to require solicitors to put up with a lot of bilge heaped on them by bill dodging clients.

You’re supposed to say, “Thank you sir. Please whack me again.”

I, for one, do not think that the QLS website does justice to Peter Eardley’s talents in the client care area.

He is one solicitor who has not flinched from dipping into his own private source of funds to make sure the punter goes home happy.

imageOne needs to travel back to 1988 to see how this issue was ventilated and resolved by the Full Court of the Supreme Court of Queensland.

Earders (seen here) had been a member of Muswellbrook (NSW) firm Fitzgerald White Talbot & Co from 1982 to 1987.

He ran into a number of difficulties there which gave rise to the Council of the NSW Law Society forming the opinion that his conduct constituted professional misconduct deserving of censure.

As it turned out, all was well. No one lost money.

He was still on the roll in NSW and when he moved to Queensland and applied for admission in 1989 he disclosed the matters that resulted in his referral to the Law Society.

The trouble was that the bone-headed Solicitors’ Board opposed his admission, even though the Queensland Law Society, where Eaders now reigns supreme, did not.

The full court was obliged to grind through all the messy details of the president-elect’s early professional life.

See full court reasons

First up, there was “the Bowen matter”.

This concerned a complaint about Eardley’s firm having a conflict of interest in matrimonial proceedings and a property settlement, which required the sale of land and the proceeds going to Mr Bowen.

Fitzgerald White Talbot acted for Mrs Bowen in the divorce proceedings and for both Mr and Mrs Bowen in the conveyancing matter, while another partner of the firm acted for the purchaser, who was a close personal friend of Mrs Bowen.

Eardley was not involved with the conveyance, which in the end fell through.

The Law Society council censured Earders and two other partners for meeting themselves coming around corners.

Those Chinese walls in Muswellbrook needed a bit of repair.

Then there was “the Daley matter” – an unfortunate affair involving an intestate estate.

The assets of the estate consisted of two bank accounts, which after deduction of various expenses had a total balance of $4,500, plus interest.

The full court said this:

“The applicant [the prez-elect] had delayed in the administration of the estate and when under pressure to provide funds from the estate for the beneficiary he provided the money from funds of his family.”

Unfortunately, it was later discovered that the beneficiary was entitled to only half the estate and not all of it.

Nonetheless, the client care was faultless.

There were two other instances where the Eardley family fortune swung into action.

In “the Colley matter” the prez-elect had acted for the purchaser of a house.

The complaint was that he hadn’t answered enquiries from a building society in order for the loan approval to go through, he failed to obtain a land tax certificate at the right time, and he didn’t properly attend to questions from the first home owners’ grant scheme, so the money could not be made available to the client.

When the client kicked-up a fuss about not getting the first home owners’ grant Earders made the funds available himself from his own family money.

As it happened, the grant was subsequently approved.

Again, family money saved the day in what was described as the “Draper and Shorter matter”.

This was a compensation claim by Draper, for whom Eardley was acting. Unfortunately the case was protracted.

Eardley arranged a loan to Draper from another client, Mrs Shorter, secured by unregistered second mortgage.

By the time the loan became due Draper’s financial position had deteriorated and his compo claim had not been settled.

The kindly solicitor used money given to him by his Mum to discharge Draper’s debt.

When the claim was settled Draper paid Eardley back.

There was one more instance that, again, highlighted the vexed business of managing client expectations.

This was “the Gilmour matter”, and in the end nothing much turned on it.

The president-elect had acted in a compensation claim on behalf of Mr Gilmour, but before the matter was completed the punter started applying pressure for payment.

Eardley transferred monies from a deceased estate ledger of one Keyes, believing that the firm was entitled to deduct those funds from the Keyes estate.

Unfortunately, it was discovered later that the Keyes professional fees had been drawn weeks before.

Of course, Earders then reimbursed the Keyes trust account from a ledger in his own name in the office account – and there was no finding of misconduct.

Eardley was light years ahead of his peers when it came to client care. If there’s any trouble just open your own wallet to the punter.

If only others in the trade were so responsive.

Frankly, I can’t see what the fuss was about. Yet, the council of the NSW Law ‘n Order Society thought that in respect of the Daley, Colley and Shorter matters what happened amounted to professional misconduct, deserving of a censure.

By that stage (1987), Earders had commenced work at Hooke & Co, solicitors of Taree.

J.E.S. Hooke, former LawSoc councillor and a member of the society’s complaints committee, sent the society a very nice reference, saying that he believed Eardley to be a conscientious, capable and hard working solicitor.

Further, there were internal communication problems at Fitzgerald White Talbot & Co that inhibited the solicitor from turning to his partners for help.

In his affidavit to the QLS sworn on November 17, 1988, Eardley said at the time there was a great deal of tension and discourd among members of his old law shop.

He also pointed out that at no time did clients suffer any financial loss.

We might wonder what Rhino Baker would have done in similar circumstances. Abuse the punter? Throw the file out the window?

No. There was none of that.

It was merely, as the full court put it, a “weakness in succumbing to pressure on the part of his clients and giving what the applicant himself acknowledges to be an obviously inappropriate answer to the problem he had created”.

The position of the Queensland Solicitors Board was not altogether sound.

It told Eardley that if he undertook to practise only as an employed solicitor for two years then it would withdraw its opposition to his admission.

As the Good Shepherd J pointed out – if he gave that undertaking he was fit and proper to be admitted, but if he didn’t then the fitness and properness somehow or other vanished.

The full court waved Earders through in April 1989, granting him a conditional admission to the Queensland trade.

Thank goodness it did for, who knows, without that admission at that time Peter Eardley may have gone on a different career path and Queensland solicitors might now be deprived of the services of next year’s president.

It also goes to show the importance of not letting trifling early-career setbacks stop you from marching onto triumph and glory.

Sir Terence O’Rort reporting