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Complaint / Committee declined to take further action / complaint lawyer withholding client funds and client rejects liability for invoices / HELD / District Court judgment establishes liability and disposed of issues / application for review discloses no reasonable cause of action and is an abuse of process / application for review struck out / section 205(1)(a) and (d)
Review / Committee found unsatisfactory conduct / will matter / lawyer acted as co-executor / complaint lawyer did not disclose information, did not act in a timely manner, and provided incompetent advice / HELD / jurisdiction / Committee’s advice on its initial determinations did not constitute a notice of determination / lawyer provided regulated services when passing on legal advice to co-executor / advice to co-executor not incompetent / lawyer’s co-executor refused to consent to distribution of estate / executor not entitled to act unilaterally / Committee’s decision reversed / section 211(1)(a)
Complaint / Committee found it lacked jurisdiction / complaint lawyer’s fees not fair and reasonable / Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, reg 29 / HELD / jurisdiction to assess fee complaint requires “special circumstances” as fee does not exceed $2,000 / no special circumstances found on review / terms of engagement permitted the involvement of more than one lawyer / no evidence hourly rate abnormally or uncommonly high / fee indicative of work completed / application for review discloses no reasonable course of action / application for review struck out / section 205(1)(a)
Committee referred conduct complaint to Disciplinary Tribunal / allegation of misconduct regarding trust funds / Orlov v New Zealand Law Society [2013] NZCA 230 / Zhao v Legal Complaints Review Officer [2016] NZHC 2622 / HELD / Committees not required to provide reasons for prosecutorial decisions / no threshold test for prosecutorial decisions / lawyer has not yet been served with charges / as a matter of fairness, providing a copy of charges should occur within a short space of time of issuing notice of determination / notice of hearing adequately notified lawyer of Committee’s misconduct concern / lawyer’s request to have matter referred back to Committee so they can obtain relevant documents declined / time to obtain documents was upon receiving Committee’s notice of hearing / Committee’s decision confirmed / section 211(1)(a)
Complaint / Committee declined to take further action / will matter / complaint lawyer represented two clients and did not verify affidavit / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 6.1 / rule 8.1 / rule 8.7 / rule 10.2 / Black v Taylor [1993] 3 NZLR 403 (CA) / HELD / conflict of interest / lawyers acted for two clients when their interests coincided / when interests diverged, clients instructed separate lawyers / lawyers could not contact complainant directly for consent / complainant’s lawyers did not raise objection / no breach of rule 6.1 / confidential information / personal characteristics / not clear “insights” into personal characteristics are confidential / no characteristic identified that would provide advantage / other client would have been able to impart knowledge about characteristics / no breach of rules 8.7 or 8.7.1 / lawyer held corroborating evidence regarding affidavit / Committee’s decision confirmed / section 211(1)(a)
Complaint / Committee found unsatisfactory conduct / domestic violence proceedings / own-motion complaint against partner following complaint by police prosecutor that lawyer acted for victim and defendant in conflict of interest / Judge also referred conflict concerns to Law Society / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 6.1 / rule 6.1.2 / rule 6.1.3 / HELD / unable to act where there is a more than negligible risk lawyer may be unable to discharge obligations to one or more clients / acting for victim against production order of medical records, intertwined with defendant’s interests / perceived compatibility of interests not demonstrated by facts / if Committee did not conclude partner was also representing clients, it would have been open to consider partner’s obligations under rule 11.3 to ensure competent supervision / Committee’s decision confirmed / section 211(1)(a)
Complaint / Committee found unsatisfactory conduct / domestic violence proceedings / complaint by police prosecutor that lawyer acted for victim and defendant in conflict of interest / judge also referred conflict concerns to Law Society / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 6.1 / rule 6.1.2 / rule 6.1.3 / HELD / unable to act where there is a more than negligible risk lawyer may be unable to discharge obligations to one or more clients / acting for victim against production order of medical records, intertwined with defendant’s interests / caution to clients that if conflict arose lawyer would cease acting, impermissibly shifts responsibility for identifying and notifying conflict, to clients / lawyer initially identified she could not represent victim / perceived compatibility of interests not demonstrated by facts / supervising partner approved lawyer acting / Committee’s decision confirmed / section 211(1)(a)
Complaint / Committee declined to take further action / relationship property division / complaint lawyer negligent and did not protect complainant’s interests during relationship property division / HELD / allegation of negligence must be pursued in court / facts and culpability disputed / complainant has alluded to negligence and Family Court proceedings / necessary objective evidence of wrongdoing is a finding to be made in the appropriate jurisdiction / application for review an abuse of process / application for review struck out / section 205(1)(d)
Complaint / Committee declined to take further action / employment proceedings / complaint opposing lawyer had affidavit, including substantive facts and documents regarding dispute, affirmed before lawyer at potential future employer / HELD / on review, declined to refer complaint to Committee dealing with complainant’s other complaint / issues involved in this complaint are discrete and can be addressed separately / no evidence complainant was seeking employment at firm / lawyer arranged for junior to identify colleague who could remotely witness affidavit / no conduct issue arises on that point / substantive facts and documents in affidavit / disciplinary process not involved until first-instance decision maker assesses conduct / standard way of putting relevant material before court / Committee’s decision confirmed / section 211(1)(a)
Committee referred conduct complaint to Disciplinary Tribunal / allegation of misconduct / Orlov v New Zealand Law Society [2013] NZCA 230 / Deliu v Hong [2012] NZHC 158 / Zhao v Legal Complaints Review Officer [2016] NZHC 2622 / HELD / issued addressed by Committee not explicitly raised by complainant, but are technical, and implicit in complaint / Committee may commence ‘own motion’ investigation into matters arising while considering complaint / conduct not manifestly acceptable / Tribunal provides forum better suited to consider issues / Committee’s decision confirmed / section 211(1)(a)
Complaint / Committee declined to take further action / employment proceedings / complaint against Employment Relations Authority members for actions during proceedings, alleging they brought legal profession into disrepute / HELD / while conduct by statutory decision maker not always beyond scope of disciplinary inquiry, in this context it is / respondents held practicing certificates / however, not providing regulated services in exercising statutory functions / dissatisfaction with decision-making may be challenged in in conventional forums / Committee’s decision confirmed / section 211(1)(a)
Complaint / Committee declined to take further action / employment proceedings / complaint opposing party (lawyers) obstructed legal proceedings / HELD / on review, declined to refer complaint to Committee dealing with complainant’s other complaint / issues involved in this complaint are discrete and can be addressed separately / failure to comply with procedural order / seriousness depends on nature of breach and how decision maker viewed it / decision maker entitled to make finding first / same principle applies to complaint under Privacy Act 1993 / disciplinary process not involved until first-instance decision maker assesses conduct / Committee’s decision confirmed / section 211(1)(a)
Review / Committee found unsatisfactory conduct / immigration and employment matter / complaint lawyer acted for client’s employer against client and threatened to disclose information about family member for improper purpose / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 2.7 / rule 6 / rule 6.1 / rule 8 / rule 8.7.1 / rule 10 / HELD / parallel complaint in Immigration Advisers Authority jurisdiction / at review hearing, lawyer accepted Committee’s liability determination / penalty / Committee imposed $10,000 fine / conflict of interest serious / inexperienced as lawyer, but should have been aware of conflict principles from experience as immigration adviser / threat regarding family member also warrants significant penalty / Committee’s decision confirmed / section 211(1)(a)
Review / Committee found unsatisfactory conduct / payment of settlement funds / complaint lawyer did not have appropriate complaints procedure / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3.8 / HELD / natural justice / lawyer properly notified of issues before Committee hearing but through oversight did not correctly identify all of them in Notice of Hearing / opportunity to make submissions on review / law firm had appropriate client complaints procedure / Committee considered formal investigation process required / in context, not required / initial informal problem solving response appropriate in the circumstances / firm justified in requiring client obtain independent advice when notified of potential action against the firm / Committee’s decision reversed / section 211(1)(a)
Review / Committee found unsatisfactory conduct / sale of company assets / complaint lawyer acted for company and directors against other directors and minority shareholders / rule 6.1 / rule 10 / rule 13.5.4 / HELD / lawyer acted in breach of conflict of interest rules, confirmed / breach of rule 13.5.4 / lawyer swore affidavit in support that did not present impartial and objective statement of fact to court / breach of rule 10 / affidavit and correspondence did not meet proper standard of professionalism / Committee censured lawyer / Committee’s decision modified to find and censure breaches of rules 10 and 13.5.4 and to impose $2,000 fine / Committee’s decision otherwise confirmed / section 211(1)(a)
Complaint / Committee found unsatisfactory conduct / sale of cross-lease property, defective title / complaint contrary to instructions, lawyer allowed purchasers to declare agreement unconditional and agreed to hold retention sum from settlement pending lodgement of updated flats plan / HELD / Committee imposed fine and training order but did not order compensation / lawyer refunded fee / lawyer’s action not causative of loss in remedying defective title / Committee’s decision confirmed / section 211(1)(a)
Complaint / Committee found unsatisfactory conduct / relationship property matter / review of Committee’s third (orders) determination / pre-1 August 2008 conduct / HELD / Committee did not order compensation / client deprived of opportunity to make informed decision, which would have caused considerable stress and anxiety / Committee’s decision modified to order lawyer pay $1,000 compensation for stress and anxiety / Committee’s decision otherwise confirmed / section 211(1)(a)
Review / Committee declined to take further action / complaint lawyers provided negligent advice and did not follow estimate / fee complaint / Unit Titles Act 2010 litigation / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 9 / rule 9.4 / HELD / Court of Appeal declined jurisdiction for appeal / jurisdiction issue cannot be relitigated in professional discipline proceedings / no further action on negligent advice complaint / allegation of negligence or breach of contract must be pursued in court / dispute over whether estimate provided / analysis of fee complaint not sufficiently complete to review / Committee directed to reconsider fee complaint and estimate / section 209 / Committee’s decision otherwise confirmed / section 211(1)(a)
Complaint / Committee declined to take further action / civil proceedings / complaint lawyer did not provide competent advice, pursued proceedings with no prospect of success, did not keep complainant informed, and terminated retainer without good cause / rule 4.2 / HELD / lawyer’s perspective on merits reasonable and open / conduct keeping complainant informed did not meet disciplinary threshold / retainer terminated for good cause / duties on terminating retainer carried out / Committee’s decision confirmed / section 211(1)(a)
Complaint / Committee declined to take further action / mediation / complaint lawyer did not provide competent advice, colluded with opposing counsel, did not record mediation, and misled the complainants / HELD / no jurisdiction to consider matter not before Committee / lawyer not required to record mediation / no evidence lawyer colluded with opposing counsel or misled complainants / no evidence conduct not competent / negligence claim must be pursued in civil jurisdiction / Committee’s decision confirmed / section 211(1)(a)
Complaint / Committee declined to take further action / creditor’s recovery of rent default / complaint lawyers improperly pursued recovery of rent default / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 2.3 / HELD / Notice of Statutory Demand pursued properly / lawyers’ handing of dispute under Deed of Lease does not raise any professional conduct concerns / Committee’s decision confirmed / section 211(1)(a)
Review / Committee found unsatisfactory conduct / property development and drafting shareholder agreement / complaint lawyer acted in conflict of interest / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 5 / rule 6 / rule 6.1 / HELD / lawyer conflicted / breach of rule 5 and subrules / found lawyer acted for complainant while director of development company in competition with complainant’s company / breach of rule 6.1 / due to conflicts, lawyer unable to explain all material risks in complainant providing unlimited guarantee and should have declined to act / Committee found conduct unsatisfactory per s 12(a), reversed on review / review focused on conflicts and found unsatisfactory conduct based on rule breaches per s 12(c) / $2,500 fine increased to $7,500 / Committee’s decision modified / section 211(1)(a)
Review / Committee found unsatisfactory conduct / apartment purchase / complaint lawyer provided estimate of costs which was not adhered to / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9 / rule 9.1 / rule 9.4 / rule 11.1 / Lawyers and Conveyancers Act (Complaints Service and Standards Committees) Regulations 2008, reg 29 / Property Transactions and E-dealing Guidelines / HELD / estimate provided, exceeded / special circumstances found to inquire into bill of costs / lack of time records / no explanation why estimate exceeded / fees not fair and reasonable / Committee’s decision modified to record exceeding estimate breaches rule 9.4, not rule 10 / also modified to record breach of rule 11.1 for indicating fees needed to be paid to settle / Committee’s decision otherwise confirmed / section 211(1)(a)
Review / Committee declined to take further action / personal grievance and ERA claim / complaint lawyers did not act in a competent and timely manner / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / HELD / one lawyer complained about took no proactive steps for 20 months / delay conduct breached rule 3 / Committee’s decision modified to find unsatisfactory conduct pursuant to s 12(c) on basis of breach of rule 3 / other lawyer instructed to stop acting, but did not adequately file note this instruction / no disciplinary consequences arise / Committee’s decision otherwise confirmed / section 211(1)(a)
Review / Committee declined to take further action / civil proceedings / complaint lawyers did not competently advise on litigation risk or adequately monitor merits of continuing claim, bullied complainant in recovering fee, terminated retainer without good cause / fees not fair and reasonable / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 4.2 / rule 4.2.2 / rule 4.2.3 / rule 10 / HELD / fee recovery did not constitute bullying / complainant advised of risks / competently monitored merits of continuing claim, negligence allegation must be pursued in civil jurisdiction / lawyers indicated retainer would be terminated for non-payment of fees, but continued trial preparation / retainer terminated relatively close to trial / Committee directed to reconsider retainer termination / section 209 / Committee may consider if trial preparation fees fairly charged after considering termination / Committee’s decision otherwise confirmed / section 211(1)(a)