Ministry of Justice

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)

Complaint / Committee declined to take further action / family trust / complainant and his siblings were involved in a dispute regarding the family trust / lawyer had a meeting with complainant’s father to discuss the existing family dispute / lawyer provided a report to the family on a way forward for the family / it was agreed by the parties involved that the lawyer’s invoice will be paid out of the estate / complainant argued that the report was biased and the fees should not be charged from the estate / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9.6 / HELD / parties were free to accept or reject the proposals made in the report / parties agreed to pay the invoice as part of the Deed / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee found unsatisfactory conduct / employment dispute / complaint opposing lawyer had acted for the complainant regarding an employment dispute / complainant had concerns about the legal fees he incurred / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 7 / rule 9.4 / Lawyers and Conveyancers Act 2006, section 3(1)(b) / section 215 / HELD / complaint opposing lawyer should have given an indication of unbilled time / complainant should have been informed that the retainer had expanded beyond initial contemplation / complainant deprived of proper opportunity to consider his options / fee charged was not fair / Committee’s decision confirmed / lawyer ordered to pay costs in the sum of $1,200 / section 211(1)(a)  

Complaint / Committee decided to take no further action / litigation / complaint opposing lawyer took steps to recover outstanding funds from the complainant / complainant argued that lawyer had no entitlement to fees claimed as he had been conflicted when undertaking work for her / complainant contended that the lawyer should have withdrawn as her counsel when circumstances required him to do so / lawyer argued that his withdrawal from the proceedings was discussed with the complainant and was supported by her / complainant was advised by new solicitor to pay the opposing lawyer’s fees / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 13 / HELD / complainant failed to provide necessary evidence to establish that the lawyer had breached his duties or obligations owed to her or the Court / complainant consistently represented to the lawyer that she would settle his fees on receipt of settlement funds from the proceedings / lawyers are entitled to be paid…

Date of decision: 28 April 2022.  

Complaint / Committee declined to take further action / complainant’s sister instructed lawyer to prepare enduring Powers of Attorney for her unwell mother / complainant’s sister was appointed her mother’s attorney / complaint lawyer’s action were negligent, careless and incompetent / fee charged was unreasonable / delays in administering the estate / conflict of interest regarding property sale / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 2.5 / rule 5 / Lawyers and Conveyancers Act 2006, section 3(1)(b) / section 4(b) / Sandman v McKay [2019] NZSC 41 / HELD / medical consultants did not consider the mother was in a fit state to be signing any legal documentation / lawyer is no longer in practice / nothing would be achieved by making an adverse finding against the lawyer now / the fee charged was reasonable / no substance to the allegation of a conflict of interests / Committee’s decision confirmed / section 211(1)(a)