DAVID GEORGE FLEMING

Findings — machine-extracted (anthropic-batch:claude-opus-4-8); verify against the decision

Mr Fleming acted for a widow whose deceased husband had left only an informal (improperly executed) will. On his client's instructions he referred to the document as a 'will' in negotiations with the siblings' solicitor and obtained a covenant from the siblings not to challenge the will or the estate, concealing the will's informal nature and the true purpose of the covenant (to support an application dispensing with the siblings' consent to probate). He also refused a request to annex the will to the deed. The Tribunal found he had knowingly made misleading representations, and expressly found his conduct dishonest and unfair under r 3.1, amounting to unprofessional conduct. Acting on client instructions was no defence. It rejected an abuse-of-process/without-prejudice argument. He was fined $7,500 and ordered to pay costs of $25,224.

Duties found breached:

• Uphold public trust in the profession
• Good faith and courtesy to colleagues

Aggravating factors:

• Practitioner was the moving force in the opposing party's misconception, pursued to obtain a material advantage for his client
• When given the opportunity to disclose the informal will (request to annex it to the deed), he put forward unconvincing/ingenious reasons to refuse and continued the misleading course
• Course of misleading conduct sustained over several months
• Conduct occurred in settlement negotiations where trust between practitioners is essential

Mitigating factors:

• Practitioner acted on his client's express instructions not to disclose the informality of the will
• Tribunal accepted that but for the client's instructions he would have described the document as an 'informal will'
• Practitioner genuinely believed the informal will would be admitted to probate
• No prior findings mentioned; the misleading representations partly originated from earlier communications by others (Mr Dundo)

⚠ figures not found verbatim in the source were dropped: ["unverified_costs_amount=25224"]