Ministry of Justice

Review / Committee declined to take further action on complaint / franchise dispute / complaint opposing lawyer falsely issued and improperly served notice of breach, delayed responding, and made personal remarks / fee complaint / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 2.3 / rule 10.2 / rule 12 / Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, regulation 29 / HELD / complaint about notice of breach is a contractual dispute for the courts, complaints process is not an alternative forum / notice of breach served directly on represented complainant in compliance with exception at rule 10.2.6 / no evidence of disrespectful correspondence / no delay in responding / no special circumstances to inquire into fee complaint / Committee’s decision confirmed / section 211(1)(a)

Committee referred conduct complaint to Disciplinary Tribunal / allegation of operating practice using another lawyer’s trust account in breach of certificates / FF v Wellington Standards Committee LCRO 23/2011 / Orlov v New Zealand Law Society [2013] NZCA 230 / HELD / matter needs to be considered in forum appropriate for issues / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee found unsatisfactory conduct / employment proceedings / complaint lawyer’s representation incompetent and fees not fair and reasonable / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 9 / rule 9.1 / LCRO 262/2014 (28 June 2018) / Auckland Standards Committee 3 v Castles [2013] NZLCDT 53 / McGuire v New Zealand Law Society [2017] NZHC 2484 / Vallant Hooker & Partners v Toothill HC Auckland CIV-2009-404-1895, 4 September 2009 / Chean v Luvit Foods International Ltd HC Auckland CIV 2006-404-1047, 7 June 2006 / HELD / complaints process does not closely scrutinise each litigation decision / breach of rule 9 / lawyer should have formed view at outset as to prospects and costs / no evidence lawyer advised costs could exceed any award or of Calderbank offer meaning / fee calculated by reference to time recorded / no measured assessment of whether fee was reasonable / Committee’s decision confirmed / section 211(1)(a)

Review / Committee declined to take further action on complaint / criminal proceedings / complaint lawyer not competent, terminated retainer improperly, and did not correctly manage funds received / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 2.1 / rule 3 / rule 4.2 / rule 14.10 / Lawyers and Conveyancers Act 2006, section 110 / Lawyers and Conveyancers Act (Trust Account) Regulations 2008, regulation 9 / regulation 10 / Skagen v Wellington Standards Committee [2016] NZHC 1772 / HELD / taking cash without issuing an invoice may have been a conduct breach but does not merit disciplinary response / breach of rule 4.2 / did not clearly advise retainer terminated / did not attend court / unsatisfactory conduct found pursuant to sections 12(a), 12(b) and 12(c) / Committee’s decision reversed to reflect rule breach / lawyer ordered to cancel and refund fee / section 211(1)(a)

Complaint / Committee declined to take further action on complaint / trust and family matters / complaint lawyer failed as independent trustee / Hansen v Young [2004] 1 NZLR 37 / PY v SD LCRO 217/2017 (26 March 2018) / Rules of Professional Conduct for Barristers and Solicitors, rule 1.04 / section 201 / HELD / no authority to direct mediation with ex-partner as they are not a party to the review / complaint relates to lawyer’s role as trustee / no evidence of professional standards issue / application for review an abuse of process / application for review struck out / section 205(1)(d)

Complaint / Committee determined to take no further action on complaint / third registered mortgage extinguished by power of sale / complaint lawyer involved in transaction cannot provide current trustees with details of how the trust lost its mortgage security / P v H LCRO 02/09 (20 March 2009) / LCRO 112/2013 (30 August 2013) / Attorney-General v O’Neill [2007] NZHC 1526 / Lawyers and Conveyancers Act 2006, section 192A / section 138(1)(c) / HELD / lawyer did not act for trustees or trust / not lawyer’s responsibility to maintain trust’s records / application for review is vexatious / application for review struck out / section 205(1)(c)

Review / Committee determined to take no further action on complaint / relationship property proceedings / complaint opposing lawyer acted for two clients in one matter when their interests did not align / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 6.1 / HELD / lawyer’s clients have not expressed concern but complainant has sufficient interest in the complaint for inquiry to proceed / lawyer prepared draft proceedings and gave advice against existing client, contrary to that client’s interests / while both shared a view on the subject of proceedings, their interests were not aligned / client cannot instruct a lawyer to act against their own interests / technical breach of rule 6.1 / appropriate to exercise discretion not to make an adverse finding in these circumstances / Committee’s decision confirmed but modified to reflect breach of rule 6.1 / section 211(1)(a)

Review / Committee found unsatisfactory conduct/ trust and relationship property matters / complaint lawyer failed to explain trustee duties and provide competent advice, failed to inform trustee they had been removed as a trustee, and acted for more than one client / provided advice to both husband and wife / Lawyers and Conveyancers Act 2006, section 12(a) / HELD / review of liability determination / lawyer must be proactive in offering advice or ensuring independent advice / lawyers can owe fiduciary duties to non-clients / no evidence lawyer provided wife with advice regarding significance of family home being owned by a trust (taking it outside of relationship property pool) or of power of appointment and removal of trustees and the associated risks if marriage ended / breach of fiduciary duty / Committee’s decision confirmed but modified to include further unsatisfactory finding conduct pursuant to section 12(c) for rule breaches related to fiduciary duties / section 211(1)(a)

Complaint / Committee determined to take no further action on complaint / breaches of franchise agreement / complaint lawyers’ advice was negligent and that fees were excessive and no estimate was provided/ fee complaint / Auckland Standards Committee No 3 v Castles [2013] NZLCDT 53 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 9 / rule 9.1 / rule 9.4 / HELD / complainant defaulted on various obligations when instructing lawyers / no right or wrong approach to litigation strategy / test for unsatisfactory conduct involves competence and diligence / no evidence of professional standards issue regarding advice / complainant did not request an estimate / although Committee did not appoint a costs assessor, it would have been reasonable for lawyers to consider an uplift in the circumstances of the retainer / this mitigates complaint that fees rendered were excessive / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee declined to take further action on complaint / settlement of estate dispute / complaint lawyer did not act competently preparing complaintant’s mother’s will to protect family property from claims / Davis v Mancer [2015] NZHC 3005 / SY v LT LCRO 1/2018 (December 2019) / JR v ST LCRO 57/2015 (December 2016) / Family Protection Act 1955 / Lawyers and Conveyancers Act 2006, section 351 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / HELD / certain conduct occurred more than six years before 1 August 2008, no jurisdiction / non-clients are owed limited duties / no evidence produced that lawyer failed to advise complainant’s mother to protect her property from relationship property/family protection claims / allegations of negligence must be tested in civil courts / Committee’s decision modified to record that any further action on the complaint is unnecessary or inappropriate / Committee’s decision otherwise confirmed / section 2…

Complaint / Committee declined to take further action on complaint / responsibility for invoices regarding mortgage defaults / complaint lawyer falsely asserted complainant was in default of mortgage, and issued two invoices complainant was not responsible for / Lawyers and Conveyancers Act 2006, section 12(a) / HELD / lawyer relied on client’s advice as to the facts when issuing one erroneous invoice / mistake quickly acknowledged, isolated error / no breach of section 12(a) / liability for other invoice currently before the courts / no evidence of breach of professional standards / Committee’s decision confirmed / section 211(1)(a)

Review / Committee declined to take further action on complaint / sale and purchase of commercial property / complaint lawyer breached undertaking / delay in providing lease documents / Auckland Standards Committee 3 v W [2011] 3 NZLR 117 (HC) / W v Auckland Standards Committee 3 [2012] NZCA 401 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 10.3 / HELD / undertaking said lease documents would be provided on completion of settlement / lawyer did not search files in response to inquiries / provided documents 5 weeks later / breach of rule 10.3 / Committee’s decision reversed / $1,000 fine and costs ordered / section 211(1)(a)

Review / Committee declined to take further action on complaint / trust dispute / complaint lawyer had a conflict of interest and did not adequately administer trust/ Lawyers and Conveyancers (Lawyers: Conduct and Client Care) Rules 2008, rule 8.7.1 / HELD / complainant consented to lawyer acting for trust/ no evidence of disclosure of client information that would adversely affect complainant / complainant may apply to High Court to compel lawyer to perform trustee duties / Committee’s decision confirmed / section 211(1)(a)