Ministry of Justice

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)

Complaint / Committee found unsatisfactory conduct / conveyancing transaction / complaint lawyer did not provide terms of engagement and deducted trust funds without authority / Lawyers and Conveyancers Act 2006, section 110 / Lawyers and Conveyancers Act (Trust Account) Regulations 2008, regulation 9 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3.4 / rule 3.5 / rule 3.6 / rule 9.3 / HELD / breach of rule 3.4 / prior terms of engagement did not remain accurate, nor was this considered at the time for the purpose of rule 3.6 / breach of rule 9.3 and reg 9 / lawyer did not have authority to deduct funds for reg 9(1)(a) / regs 9 and 10 demand strict compliance / Committee’s decision confirmed / section 211(1)(a)

Review / Committee declined to take further action on complaint / civil proceedings / complaint lawyer refused to issue proceedings and duplicated work / fee complaint / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 1.2 / rule 9 / rule 9.1 / HELD / no evidence complainant instructed lawyer to issue proceedings / Standards Committee directed to reconsider fee complaint / section 209(1)(a) / Committee’s decision otherwise confirmed / section 211(1)(a)

Review / Committee found unsatisfactory conduct / estate matter / complaint lawyer did not treat complainant with respect and courtesy or promptly answer requests for information, and failed to disclose documents / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3.1 / rule 7 / rule 7.2 / rule 9.4 / second complaint / HELD / respect and courtesy, and requests for information complaints determined in first complaint / no breach of rule 7 / complainant was not lawyer’s client / no breach of rule 9.4 / lawyer not able to provide estimate / Committee’s decision reversed as to unsatisfactory conduct findings, otherwise confirmed / section 211(1)(a)

Review / Committee found unsatisfactory conduct / conveyancing transaction / complaint lawyer misspelt client’s name on title and did not follow instructions to correct mistake / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 11 / Lawyers and Conveyancers Act 2006, section 137 / section 138 / complainant asked to withdraw complaint / HELD / complainant’s wishes on progressing complaint not determinative / when complainant asks to withdraw complaint, Committee’s role is to weigh request against public interest requirements / breach of rule 3 / failed to act in a timely way to correct mistake and disregarded instructions to do so / breach of rule 11 / responses to complaint and inquiry failed to preserve reputation of legal profession / Committee’s decision modified as to scope of rule 11 breach, otherwise confirmed / section 211(1)(a)

Complaint / Committee declined to take further action on complaint / conveyancing transaction / complaint lawyer failed to advise on land covenants, did not act in a timely manner and did not promptly address internal complaint / Burgess v Tait [2014] NZHC 2408 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 3.8 / rule 5.11 / rule 7 / rule 7.1 / HELD / breach of rules 3, 7 and 7.1 / lawyer admitted they failed to advise about land covenant / however, breaches do not call for a disciplinary sanction / no professional standards issue with internal complaint process / Committee’s decision confirmed / section 211(1)(a)