Ministry of Justice

Complaint / Committee declined to take further action on complaint / enduring power of attorney / complaint donor not mentally competent to execute EPOA / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / Den v Vancleve (1819) 2 Southard 660 / Re K (Enduring Powers of Attorney) [1988] 2 WLR 781 / Hoff v Atherton [2004] EWCA Civ 1554 / Simon v Byford [2014] EWCA Civ 280 / HELD / complaints process does not offer parallel jurisdiction for determination of professional negligence / no clear-cut evidence of professional standards issue / earlier medical report complainant relies on was not made available to lawyer / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee declined to take further action on complaint / liquidation matter / complaint by unsecured creditor that lawyer’s fee and structure unfair / lawyer entered a conditional fee agreement with liquidator / Committee decided applicant not a person chargeable and declined jurisdiction to consider complaint / Lawyers and Conveyancers (Lawyers: Conduct and Client Care) Rules 2008, rule 1.2 / rule 9 / Weathertight Homes Resolution Services Act 2006 / HELD / applicant not a party to fee agreement / lawyer acted for liquidator not applicant / applicant not a person chargeable with respondent’s bill of costs / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee declined to take further action on complaint / lease renewal / complaint lawyer acted beyond instructions and did not seek payment from landlord for lawyer’s fees / Hunstanton v Camborne LCRO 167/2009 (10 February 2010) / Chean v Kensington Swan HC Auckland Civ-2006-404-1047, 7 June 2006 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9 / rule 9.1 / HELD / no evidence of professional standards issue / focus of complaint is on landlord’s failure to cover fees / fees reasonable / Committee’s decision confirmed / section 211(1)(a)

Review / Committee declined to take further action on complaint / estate administration / complaint lawyer opposed beneficiary in family protection claim and did not provide information / fee complaint / lawyer sole executor and trustee of estate / Administration Act 1969, section 26 / Family Protection Act 1955, section 11 / Hunstanton v Cambourne LCRO 167/2009 (February 2010) / Re Murphy’s Settlements [1998] 3 All ER 1 / Jemma Trust Co Ltd v Liptrott [2003] EWCA Civ 1476 / HELD / although best practice, lawyer not required to provide bill of costs to complainant in these circumstances / lawyer’s involvement in family protection claim and payments to third parties from estate, in executor capacity / section 211(1)(b) / Committee directed to determine fee complaint / section 209(1)(a) / Committee’s decision otherwise confirmed / section 211(1)(a)

Complaint / Committee declined to take further action on complaint / employment dispute / complaint opposing lawyers committed crimes during proceedings / HELD / review application an attempt to relitigate employment dispute / Committee’s decision confirmed / section 211(1)(a)

(See also minute dated 30 October 2019, decision dated 29 November 2019 and decision as to publication dated 17 February 2020)

Complaint / Committee declined to take further action on complaint / enforcement proceedings / complaint lawyer failed to competently represent client and terminated retainer without good cause / Auckland Standards Committee 3 v Castles [2013] NZLCDT 53 / LCRO 262/2014 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 4.1 / rule 4.2 / rule 4.2.1 / HELD / evidence does not demonstrate inadequate representation / not task of Standards Committee or LCRO to provide overarching supervision of litigation strategies / lawyer did not have capacity to attend to charging order, which required urgent response / fully informed client and received instructions to transfer file / retainer ended by consent / Committee’s decision confirmed / section 211(1)(a)

Review / Committee found unsatisfactory conduct / Family Court proceedings / complaint lawyer failed to protect interests and act in accordance with fiduciary duties / fee complaint / Family Court set aside relationship property agreement / Committee ordered $150,000 fee refund / Property (Relationships) Act 1976, section 21 / P v H LCRO 02/2009 / TJ v DM LCRO 261/2016 / HELD / elements of joint complaint vexatious / evidence does not support allegations in complaint / Committee may not order refund exceeding fees paid / lawyer kept client informed and provided competent advice / no evidence of assurances that costs position was secure / retainer uncertain with litigation risk / no further action on fee complaint as joint complaint vexatious / section 211(1)(b) / Committee’s decision reversed / section 211(1)(a) 

Date of decision: 31 October 2019.

Complaint / Committee declined to take further action on complaint / contractual advice / complaint lawyer was negligent when advising on contractual appointment / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 7 / rule 7.1 / HELD / lawyer failed to advise there was a potential for dispute regarding contractual appointment / no further penalty / Committee’s decision confirmed / section 211(1)(a)

Date of minute: 30 October 2019  (see also list of evidence, decision dated 29 November 2019 and decision as to publication dated 17 February 2020)

Review / Committee declined to take further action on complaint / relationship property agreement / complaint lawyer failed to accurately calculate funds available to client on settlement of property sale / whether lawyer provided competent service / whether lawyer ensured client understood calculations / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 7 / rule 7.1 / Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] 3 NZLR 850 (HC) / Workington v Sheffield LCRO 55/2009 (26 August 2009) / HELD / lawyer failed to calculate net proceeds of sale accurately / did not ensure client understood calculations / $2,500 fine / Committee’s decision reversed / section 211(1)(a)

Review / Committee declined to take further action on complaint / relationship property proceedings / widely-cast complaint that lawyers failed to act competently / fee complaint / Lawyers and Conveyancers Act (Lawyers: Client Care and Conduct) Rules 2008, rule 3 / rule 9.1 / whether Committee reviewed fee complaint correctly / HELD / no evidence of professional standards issue / brief reasons for conclusions on fee review insufficient in the circumstances / Committee did not appoint cost assessor / Committee to reconsider fee complaint / section 209(1)(a) / Committee’s decision otherwise confirmed / section 211(1)(a)