Date of decision: 13 June 2023.
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Date of decision: 13 June 2023.
Date of decision: 23 May 2023.
Complaint / Committee found unsatisfactory conduct / Lawyers and Conveyancers Act 2006, s4, s12 / Conduct and Client Care Rules 2008, r3, r3.4, r3.5, r5, r6 / HELD / lawyer’s argument that his role was limited to explaining terms to his client is invalid / a lawyer has a duty to be proactive in offering advice / lawyer failed to recognise who his was acting for / clear obligation to tender advice about the implications and deficiencies in an agreement / lawyer breached his duty to protect and promote interests of his client / fine imposed by Committee increased / Committees decision confirmed / section 211(a)
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: 28 March 2023.
Date of decision: 21 March 2023.
Review / Committee found unsatisfactory conduct / litigation matter / lawyer had sworn two affidavits in proceedings which were inaccurate / lawyer agreed relevant pages of affidavit was inaccurate / lawyer denied acting for complainant in any professional capacity in the 2016 affidavit / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 2 / r 13.1 / HELD / not every breach of conduct rule will result in a finding of unsatisfactory conduct / lawyers are obligated to uphold the rule of law in whatever capacity they are conducting themselves / lawyer had to make sure to the best of his ability that evidence he submitted was truthful and accurate / conduct not a minor or technical breach of rules / breach of r 2 confirmed for 2016 affidavit / breach of 2017 affidavit reversed / lawyer ordered to pay costs / Committee’s finding modified / section 211(1)(a)
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 / litigation matter / complaint lawyer accused opposing lawyer and her client of lying and misrepresenting / lawyer called opposing lawyer incompetent / tone of lawyer’s communication was disrespectful / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 10.1 / HELD / lawyer’s conduct breached r 10.1 / conduct not a threat to the public / lawyer apologised for his conduct / neither High Court or the Court of Appeal found it necessary to make any comment on this conduct / lawyer ordered to pay costs / Committee’s finding of unsatisfactory conduct reversed / 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…
Complaint / Committee declined to take further action / litigation matter / legal aid / application to amend grant of legal aid misrepresented client instructions / lawyer compromised case by giving inaccurate account of grounds of defence / incompetently managed evidence of witnesses instructed / HELD / application to amend the legal aid grant did not adversely affected client’s ability to secure a grant nor compromise defence / experts called to give evidence were supportive of complainant’s position in litigation / no evidence to support contention that complainant suffered adverse outcome as a consequence of comments made by lawyer / inquiries made of witnesses did not indicate lack of competence or diligence / Committee’s decision confirmed / section 211(1)(a)
Date of decision: 28 October 2022.
Complaint / Committee found unsatisfactory conduct / employment dispute matter / lawyer called complainant delusional and difficult / fee charged was excessive / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3.1 / HELD / lawyer breached his obligation to act courteously and respectfully / clear explanation of charge out rate given / no contention to support lawyer lost faith in his client’s claim /no other professional obligations or duties breached / lawyer ordered to pay costs to NZLS / Committee’s decision confirmed / section 211(1)(a)
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)
Review / Committee declined to take further action / company matter / lawyer acting for more than one client on a matter / more than a negligible / lawyer continuing to represent company after assuring he would not / conflict of duties / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 6.1 / r 8.7 / r 8.7.1 / HELD / lawyer breached r 6.1 / more than negligible risk to be unable to discharge obligations owed to one or more clients / not established that lawyer held information confidential to former client / lawyer did not engage with client in a disrespectful manner / Committee’s finding of no breach reversed / unsatisfactory conduct established / lawyer directed to pay fine and costs / other respects of Committee’s decision confirmed /section 215
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 found unsatisfactory conduct / appointment of trustees / complaint that lawyer did not amend will according to complainant’s instructions / lawyer ought to have recommended an assessment of complainant’s capacity by a medical professional / file notes inadequate / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 5 / Sandman v McKay [2019] NZSC 41 / HELD / complaints about lawyer not carrying out instructions are not supported on the balance of probabilities / lawyer was satisfied that complainant had sufficient capacity to understand and sign document after meeting him / penalties imposed fall away / Committee’s decision is reversed / 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 made findings of unsatisfactory conduct / complaint lawyer failed to recognise conflict of interest / complainant not liable for lawyer’s fees / fee invoices are not fair and reasonable / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 6.1 / rule 9 / HELD / matters of contractual liability are for the Courts to decide / lawyer should pursue payment of the invoices through the Court / lawyer should not have accepted instructions to act for both creditors in the same matter / lawyer ordered to pay costs to NZLS / Committee’s decision 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)
Complaint / Committee declined to take further action / estate matter / complaint lawyer did not provide letter of engagement, provided poor service / fee complaint / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9 / Wilson v LCRO [2016] NZHC 2288 / McGuire v Manawatu Standards Committee [2016] NZHC 1052 / HELD / no breach of conduct rules regarding service or fee complaint / disciplinary response not required for not providing letter of engagement / no mischief occurred in terms of McGuire judgment / 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 / complaint lawyer failed to adequately advise complainant about the consequences of a protection order / Sentencing Act 2002, section 123(d) / HELD / complainant terminated retainer prior to sentencing / lawyer did not fail their duty to provide competent representation / Committee’s decision 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)
Review / Committee declined to take further action / trust administration matter / incompetence in administrating the trust / failed to respond in a timely manner / breached fiduciary duty and charged unreasonable fees / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / Lawyers and Conveyancers Act 2006, section 12 / section 209 / HELD / complainant’s allegations of incompetence returned to the Committee for reconsideration / Committee to reconsider complaint about fees / Committee’s decision to take no further action about emails responses and invoices confirmed / section 211(1)(a)