Ministry of Justice

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 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 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)

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 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 / 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)

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)

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 / 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)

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 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)

Complaint / Committee declined to take further action / easement litigation and appeal / complaint lawyer charged fees that were not fair and reasonable, did not treat complainant with respect and courtesy, and refused to release file / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3.1 / rule 3.4A / rule 3.7 / HELD / costs assessor appropriately disclosed personal connection to retainer, no evidence of bias / reasonable fee factor for risk disregarded / rule 9.1(e) does not encompass risk client may terminate retainer / barrister not required to provide terms of engagement in advance, but it would have been prudent to do so / effect of non-provision not as extensive as alleged / errors identified in time records do not establish fees not fair and reasonable / fees fair and reasonable / delay in making file available does not warrant disciplinary response / Committee’s decision confirmed / section 211(1)(a)

Review / Committee found unsatisfactory conduct / estate administration and litigation / complaint fees charged to estate not fair and reasonable, lawyer acted in conflict of interest and was not competent / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 9 / HELD / lawyer alleged costs assessor breached natural justice / lawyer did not return assessor’s call / has not engaged in previous disciplinary proceedings / Committee may inquire into invoices issued after fee complaint made / professional estate administration conduct by lawyer captured by Act / difficulty in reconciling files / Committee’s decision modified so lawyer’s management of physical files breaches s 12(b), not rule 3 / costs assessor’s report recommended global fee reduction / some fees assessed as fair and reasonable, should not be reduced / Committee’s decision modified to reduce, cancel and refund excessive fees only / $2,000 fine and $500 costs not interfered with / otherw…