Ministry of Justice

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claimed as he had been conflicted when undertaking work for her / complainant contended that the lawyer should have withdrawn as her counsel when circumstances required him to do so / lawyer argued that his withdrawal from the proceedings was discussed with the complainant and was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)

Complaint / Committee declined to take further action / property matter / complaint opposing lawyer did not follow instructions to cancel the agreement / complainant argued that the lawyers mismanaged the transaction after settlement and did not respond in a timely manner / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 3.2 / HELD / one of the opposing lawyer’s breached rules 3 and 3.2 / breaches do not require the imposition of a disciplinary mark / none of the shortcomings engage the honesty or integrity of any of the parties / complainants unable to establish that their version of the critical events was probable / Committee’s decision confirmed / section 211(1)(a)

Review / Committee found unsatisfactory conduct / relationship property / Court granted a temporary Order for one of the complainant’s to act as a manager of property belonging to the complainant’s mother due to her health issues / complainants lodged their complaint about the lawyer’s excessive fees / considerable amount of the fees rendered resulted from the calls made to the firm by the complainant’s mother / Lawyers and Conveyancers Act 2006, section 132 / section 192 / Protection of Personal and Property Rights Act 1988, schedule 1 / section 30 / HELD / the Order was temporary / payment of the bills were to be made from the complainant’s mother’s funds / complainant not chargeable with payment of lawyer’s fees / parties resolved matters between themselves / Committee’s finding’s of unsatisfactory conduct reversed / section 211(1)(a)

Review / Committee declined to take further action / relationship property and estate matter / complaint opposing lawyers did not comply with the relevant rules when paying the legacies and charged unreasonable fees / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3.4 / rule 3.5 / Lawyers and Conveyancers Act 2006, section 351 /section 192(b) / Solicitors Trust Account Rules 1996, rule 5.8 / Trust Account Regulations 2008, regulation 12 / HELD / resolution proposed by the LCRO / no adverse finding against the lawyers / lawyers to make relevant payments to the applicants if proposal is accepted / application for review struck out / section 205(1)(a)

Complaint / Committee declined to take further action / relationship property dispute / complaint lawyers acted in a misleading manner, gave false information and breached professional obligations / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 13.5.1 / rule 13.5.3 / Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, regulation 9 / HELD / Complaints Service did not forward a copy of complaints to lawyers as complaint followed Early Resolution Service process / parties agreed not to send complaint back for reconsideration / evidence does not support lawyer misleading LCRO / court controlling proceedings rejected argument that lawyer was in conflict, which answers r 13.5 complaint / using legitimate court process is not underhanded / LINZ satisfied lawyer entitled to use LandOnline licence / other concerns appropriately addressed in other forums / Committee’s decision confirmed / section 211(1)(a) 

Complaint / Committee declined to take further action / litigation / complaint opposing lawyer communicated directly with represented client / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 10.2 / HELD / lawyer wrote directly to complainant about matters they were both represented and unrepresented in / one paragraph directed to represented matter / did not undermine principle behind r 10.2 / Committee considered this a technical breach of r 10.2 / breach does not require disciplinary response, complaint serves as a reminder of scrupulous adherence to rules / Committee’s decision confirmed / section 211(1)(a)

Review / Committee found unsatisfactory conduct / own-motion investigation following confidential report that on two occasions, lawyer inappropriately touched employees without consent / NZLS applied to review culpability determination / whether conduct should have been referred to LCDT / whether LCRO should lay charges / HELD / conduct occurred after work-related social event / constitutes conduct connected with regulated services / culpability inquiry should not generally consider external factors such as lawyer’s personal circumstances or matters unconnected with alleged breach / Committee incorrectly allowed unrelated mitigation issues to affect assessment of culpability / these factors more appropriately considered in penalty / Committee’s examination of whether force was used in incidents is incomplete / use of force requires careful and critical assessment / Committee directed to reconsider culpability for conduct without considering unrelated mitigation issues / section 209

Review / Committee found unsatisfactory conduct / estates and relationship property / complaint lawyer incorrectly advised about a settlement offer and advice was disclosed without consent to other side / lawyer sought to reverse remaining orders of $3,000 fine and requirement for further training / HELD / conduct unsatisfactory / no basis to interfere with order to pay client’s costs / fine appropriate as conduct fell short of competence public is entitled to expect of a reasonably competent lawyer / further training unnecessary / problems with conduct not directly related to estate administration issues / lengthy career / LCRO confident complaints process gave lawyer pause to reflect on issues / Committee had not yet decided on name publication / Committee to be informed of review / parties can seek review of publication decision without filing formal review application or paying filing fee / Committee’s decision on training reversed / Committee’s decision otherwise confirmed / secti…

Complaint / referral to Lawyers and Conveyancers Disciplinary Tribunal / own motion investigation / alleged sexual harassment and breach of alcohol policy / Lawyers and Conveyancers Act 2006, section 7 / section 12 / section 154 / section 158 / section 204 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 10 / HELD / no need to seek Committee’s reasons for referral / conduct was unsatisfactory and capable of misconduct finding / events captured by “regulated services” / even if not, covered by other provisions / covered by r 10 / comparison with prior Committee decision of no assistance / alcohol consumption could have compromised safety of clients, staff or others / conduct of a sexual nature could potentially be misconduct / visiting adult store with female clerks / inappropriate touching / “flirty” emails to more junior solicitor / facts of one instance disputed, appropriate for Tribunal to assess conduct / Committee’s decision confirmed / section 21…

Complaint / Committee found unsatisfactory conduct / censure and $10,000 fine / civil litigation / complaint lawyer failed to draft and file proceedings within appropriate time frame, allowing other party to advance Limitation Act defence / HELD / lawyer did not seriously challenge unsatisfactory conduct finding / contended penalties were unduly harsh / lawyer displayed casual indifference to obligation to advance and protect client’s interests / conduct at the high end of unsatisfactory but did not reach threshold for referral to Disciplinary Tribunal / censure was not unreasonable or disproportionate / lawyer failed to act on client’s instructions for a long time and was oblivious to requests for updates and explanations for delay / delay approached unconscionability / length of delay, lawyer’s indifference to advancing client’s case, and unconvincing explanations for conduct support argument for significant fine / Committee’s decision confirmed / section 211(1)(a)