Ministry of Justice

Review / Committee found unsatisfactory conduct / Conduct and Client Care Rules 2008, r10.9, r13.1 / lawyer bullied complainant, used complaints process to cause distress, and made misleading submission / HELD / preliminary matters / fresh evidence admitted / conduct could have been referred to LCDT, but can be appropriately marked by increasing penalty / Committee’s fine inadequate given seriousness of conduct / Committee overemphasized significance of remorse / prolonged, repeated harassment / Committee’s decision modified to increase fine to $10,000 / Committee’s decision otherwise confirmed / section 211(a)

Date of decision: 21 March 2023.  

Complaint / Committee declined to take further action / trust matter / lawyer acted for two trustees in the removal of complainant as a trustee / complainant claims he was wrongly removed / lawyer incorrectly certified he had authority to act for trustees as transferor / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 2.5 / r 2.6 / HELD / lawyer did not owe complainant professional duties as he was not a client / LCRO does not have jurisdiction to determine matters involving exercising power or discretion vested in a trustee / determination for lawyer’s certification for e-dealing purposes to transfer the trust’s properties is reserved to the court / decision modified to provide that there is an adequate remedy available to complainant / Committee’s decision confirmed / section 211(1)(a)  

Review / Committee found unsatisfactory conduct / commercial property matter / lawyers made a number of strategic errors that was costly for the complainant / complainant was poorly advised / lawyers’ failed to identify appropriate legal remedies / lawyers paid little attention to the possible consequences when providing advice / excessive fees / lawyers continued illegality argument instead of focusing on alternative remedies / Lawyers and Conveyancers Act 2006, section 12(c) / section 152(2)(b) / section 156(1)(f) / section 156(1)(i) / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9.1 / rule 9.1(c) / HELD / more comprehensive assessment of risk factors was required / indication of litigation risk should to be thoroughly explained / lawyer’s failed to be sufficiently responsive to changing circumstances / lawyer’s failed to ensure complainant was adequately informed as to her costs exposure / significant sum of costs to incur in defending proceedings…

Date of decision: 28 October 2022.  

Complaint / Committee declined to take further action / trust matter / conflict of interest / claim that lawyers who are trustees acted for other trustees as a lawyer / did lawyers breach professional standards by advising to sell trust property / Lawyers and Conveyancers Act 2006 section 3(1) / s 4(d) / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 6.1 / HELD / lawyers’ role confined to act as trustee of estate / no lawyer-client relationship with estate / decision to sell property reached by lawyers in their capacity as trustees not lawyers / Committee’s decision confirmed but modified / section 211(1)(a)

Complaint / Committee declined to take further action / property matter / lawyer sent a letter of engagement via post to complainant / complainant alleges she didn’t receive the letter of engagement / complaint about the amount of fees / time records provided by lawyer missing information / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9.4 / HELD / not every breach of the rules necessarily results in an adverse finding against a lawyer / LCRO invites lawyer to consider voluntary reduction of fee as a gesture of goodwill / Committee’s decision confirmed / section 211(1)(a)

Review / Committee declined to take further action / relationship property proceedings / complaint lawyer took steps to recover outstanding fees by complainant / lawyer failed to follow instructions to challenge property valuation / lawyer inadequately represented complainant / no terms of engagement given to complainant / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3.4 / Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, regulation 29 / HELD / section 209 / Committee directed to reconsider interim distribution issue / Committee to reconsider whether fee charged was fair and reasonable / lawyer guilty of unsatisfactory conduct for failing to provide complainant information on the principal aspects of client service / other Committee findings confirmed / section 211(1)(a)

Complaint / Committee declined to take further action / litigation matter / complaint lawyer was negligent and incompetent in litigation / fees complaint / Committee determined no special circumstances to deal with the fee complaint / Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, regulation 29 / Lawyers and Conveyancers Act, section 138(1)(f) / HELD / arguments put forward by complainant are founded on allegations that have not been argued and decided / claim before the court represents the best opportunity for complainant to pursue his defence and seek recompense / Committee’s decision confirmed / section 211(1)(a)

Review / cross-applications / litigation / complainant applied to review Committee’s determination to take no further action on other aspects of complaint / complaint lawyer applied to review unsatisfactory conduct determination / complainant alleged lawyer’s conduct during hearing led to disadvantaged outcome for his company / lawyer’s cross-examining conduct was unprofessional and discourteous / Lawyers and Conveyancers Act 2006, section 138(1)(f) / section 138(2) / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 13.2.1 / rule 13.8 / HELD / Committee wrongly commented on reliability and credibility of viva voce evidence in another jurisdiction / Committee wrongly inquired into complaint about lawyer’s cross-examination conduct / finding of unsatisfactory conduct reversed / decision to take no further action on complaints about lawyer’s conduct towards other parties confirmed / section 211(1)(a)  

Complaint / Committee declined to take further action / litigation / strategy recommended by lawyer failed to sufficiently consider the instructions of the complainant/ lawyer failed to respond to communications forwarded / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 3.2 / HELD / complaint that lawyer failed to provide competent advice is not established / impossible to determine what shape the lawyer’s final submissions may have taken / lawyer’s failure to communicate with client is not sufficiently extensive to merit the imposition of a disciplinary sanction / Committee’s decision confirmed / section 211(1)(a)  

Complaint / Committee found unsatisfactory conduct / complaint lawyer missed hearing / lawyer’s request to have application recalled was dismissed / judge considered lawyer’s indication of intention to file complaint to Judicial Conduct Commission grossly discourteous / judge filed complaint with NZLS / lawyer alleged Committee misstated the situation and Committee lacked evidence to support finding / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 10 / rule 12 / rule 13.2 / rule 13.2.1 / HELD / lawyer’s threat to make complaint was unprofessional and discourteous / breach of lawyer’s overriding duties as an officer of the court / Committees decision confirmed / section 211(1)(a)

Complaint / Committee found unsatisfactory conduct / review of penalty decision / failure to keep will safe / complainant could not access late husband’s KiwiSaver / complainant was obliged to apply for probate for a copy of the will / delay in being able to meet ongoing costs caused loss of dignity and distress / Lawyers and Conveyancers Act 2006, section 152(2)(b)(i) / section 156(1)(b) / McGuire v Manawatu Standards Committee [2016] NZHC 1052 / HELD / lawyer censured / compensation of $10,000 to the complainant / Committee imposed $2,000 fine / costs of $1,500 to the Law Society / LCRO ordered lawyer to pay sum of $450 by way of costs of the review / Committee’s decision confirmed / section 211(1)(a)