Ministry of Justice

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…

Complaint / Committee declined to take further action / border alert application / complaint delay and clerical error in submitting border alert application demonstrated lawyer’s conduct did not meet standard of competence required / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / Lawyers and Conveyancers Act 2006, section 12(a) / HELD / on review, complainant broadened complaint to include firm’s processes and procedures / issue not within scope of review / no breach of rule 3 / first application form not accepted by police as not signed by lawyer / form indicates it can be signed by complainant or lawyer / at police request, lawyer signed form / secretary erroneously sent previous form again / lawyer not fairly responsible for secretary’s error / correct form sent promptly after error / in context, delays do not constitute unsatisfactory conduct / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee declined to take further action / estate matter / complaint opposing lawyer acted fraudulently and deceptively while seeking a copy of a will from third parties / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 2.3 / rule 11.1 / HELD / lawyers owe limited duties to non-clients / lawyer was seeking a copy of a will that was not provided to other beneficiaries by complainant / it would have been preferable for lawyer to indicate they were assisting beneficiaries with estate rather than in the administration of estate / evidence does not demonstrate conduct was dishonest, rather, imprecise / rule 11.1 directed at misleading or deceptive conduct in relation to a lawyer’s practice, not in advocacy / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee declined to take further action / civil litigation / complaint lawyers did not provide competent representation, did not follow instructions and charged fees that were not fair and reasonable / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9 / rule 9.1 / HELD / new issues raised at review stage cannot be considered / lawyers must follow client instructions / no evidence lawyers resisted instructions to end litigation / complainant advised of risks / no evidence lawyers falsely represented hourly rates / fees fair and reasonable / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee declined to take further action / insurance claim and franchise advice / complaint lawyers not competent, charged fees that were not fair and reasonable, and did not make it clear an invoice did not cover franchise advice from another firm / HELD / jurisdiction / application for review included request to review two determinations; one was out of time to review / Complaint Services’ decision to split complaint into two files is an administrative decision, review jurisdiction is to review aspects of Committee’s inquiry / nevertheless, decision to separate complaints logical / no evidence of professional conduct issue / disciplinary process does not closely analyse and second guess litigation decisions / mistaken assumption that an invoice covered franchise advice / franchise advice properly chargeable / fees fair and reasonable / Committee’s decision confirmed / section 211(1)(a)

Review / Committee declined to take further action on complaint / advice relating to protection order / complaint opposing lawyer advised their client they could breach explicit terms of protection order / CW v XB LCRO 213/2010 / KJ v VW LCRO 54/18 / Burmeister v O’Brien [2010] 2 NZLR 395 (HC) / HELD / expected that a reasonably competent lawyer would comprehend restriction imposed by protection order and advise client accordingly / unsatisfactory conduct pursuant to section 12(a) / Committee’s decision reversed / section 211(1)(a)

Complaint / Committee found unsatisfactory conduct / lodging a caveat, claim against estate / complaint lawyer lodged caveat without proper basis and Committee did not order full compensation / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 2.3 / section 156(1)(d) / BAB v PW LCRO 4/2011 / HELD / lawyer’s client did not have caveatable interest / review application challenges partial compensation order / Committee determined not to provide full compensation due to complainant’s contributory behaviour / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee declined to take further action on complaint / failed property development / complaint lawyer knowingly participated in fraudulent development scheme / second complaint / LO v RT LCRO 202/17 (4 February 2019) / HELD / second complaint repeats earlier complaint / Committee’s decision confirmed / section 211(1)(a)

Date of decision: 21 December 2020.  

Complaint / Committee declined to take further action / trust and estate dispute / complaint lawyer did not meet duty of care, failed to act promptly and charged excessive fees / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9 / rule 9.1 / HELD / no evidence lawyer committed to resolving dispute within short timeframe / miscommunication about request for documents already provided by complainant not unsatisfactory conduct / liability for fees for reviewing financial statements not dependent on finding irregularities / fee complaint regarding minute disputes for properly chargeable fees not upheld / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee declined to take further action / trust funds / complaint lawyer received trust funds from trustee and followed instructions to pay funds to trustee’s company / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 4.1 / rule 4.2 / Lawyers and Conveyancers Act 2006, section 110 / Lawyers and Conveyancers Act (Lawyers: Trust Account Regulations) Regulations 2008, regulation 12 / Fletcher v Eden Refuge Trust [2012] NZCA 124 / Trust Account Guidelines / HELD / other than being instructing solicitor on proceedings to remove trustee, no evidence produced that lawyer knew trustee not entitled to funds / issue yet to be determined in court / lawyer could have asked for copy of trustee resolution authorising payment, or terminated retainer / however, no contravention of trust account rules on the evidence / without further information, lawyer obliged to carry out instructions / Committee’s decision confirmed / section 211(1)(a)

Review / Committee found unsatisfactory conduct / conveyancing transaction / complaint lawyer invoiced clients when not involved in sale, did not provide new lawyer with access to e-dealing and fees were not fair and reasonable / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 4.3 / rule 4.4 / rule 9 / rule 9.1 / HELD / lawyer provided undertaking with irrevocable instructions to purchaser’s solicitor in exchange for 50 per cent deposit to be paid / Committee’s decision to accept cost assessor’s report not well founded / cost assessor estimated time spent on matter and did not take into account particulars of this transaction / not referred back due to time elapsed / new lawyer should have set up fresh e-dealing / Committee’s decision reversed / section 211(1)(a)