Ministry of Justice

Complaint / Committee found unsatisfactory conduct / complaint lawyer missed hearing / lawyer’s request to have application recalled was dismissed / judge considered lawyer’s indication of intention to file complaint to Judicial Conduct Commission grossly discourteous / judge filed complaint with NZLS / lawyer alleged Committee misstated the situation and Committee lacked evidence to support finding / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 10 / rule 12 / rule 13.2 / rule 13.2.1 / HELD / lawyer’s threat to make complaint was unprofessional and discourteous / breach of lawyer’s overriding duties as an officer of the court / Committees decision confirmed / section 211(1)(a)

Complaint / Committee found unsatisfactory conduct / review of penalty decision / failure to keep will safe / complainant could not access late husband’s KiwiSaver / complainant was obliged to apply for probate for a copy of the will / delay in being able to meet ongoing costs caused loss of dignity and distress / Lawyers and Conveyancers Act 2006, section 152(2)(b)(i) / section 156(1)(b) / McGuire v Manawatu Standards Committee [2016] NZHC 1052 / HELD / lawyer censured / compensation of $10,000 to the complainant / Committee imposed $2,000 fine / costs of $1,500 to the Law Society / LCRO ordered lawyer to pay sum of $450 by way of costs of the review / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee declined to take further action / family trust / complainant and his siblings were involved in a dispute regarding the family trust / lawyer had a meeting with complainant’s father to discuss the existing family dispute / lawyer provided a report to the family on a way forward for the family / it was agreed by the parties involved that the lawyer’s invoice will be paid out of the estate / complainant argued that the report was biased and the fees should not be charged from the estate / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9.6 / HELD / parties were free to accept or reject the proposals made in the report / parties agreed to pay the invoice as part of the Deed / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee found unsatisfactory conduct / employment dispute / complaint opposing lawyer had acted for the complainant regarding an employment dispute / complainant had concerns about the legal fees he incurred / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 7 / rule 9.4 / Lawyers and Conveyancers Act 2006, section 3(1)(b) / section 215 / HELD / complaint opposing lawyer should have given an indication of unbilled time / complainant should have been informed that the retainer had expanded beyond initial contemplation / complainant deprived of proper opportunity to consider his options / fee charged was not fair / Committee’s decision confirmed / lawyer ordered to pay costs in the sum of $1,200 / section 211(1)(a)  

Complaint / Committee decided to take no further action / litigation / complaint opposing lawyer took steps to recover outstanding funds from the complainant / complainant argued that lawyer had no entitlement to fees claimed as he had been conflicted when undertaking work for her / complainant contended that the lawyer should have withdrawn as her counsel when circumstances required him to do so / lawyer argued that his withdrawal from the proceedings was discussed with the complainant and was supported by her / complainant was advised by new solicitor to pay the opposing lawyer’s fees / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 13 / HELD / complainant failed to provide necessary evidence to establish that the lawyer had breached his duties or obligations owed to her or the Court / complainant consistently represented to the lawyer that she would settle his fees on receipt of settlement funds from the proceedings / lawyers are entitled to be paid…

Date of decision: 28 April 2022.  

Complaint / Committee declined to take further action / complainant’s sister instructed lawyer to prepare enduring Powers of Attorney for her unwell mother / complainant’s sister was appointed her mother’s attorney / complaint lawyer’s action were negligent, careless and incompetent / fee charged was unreasonable / delays in administering the estate / conflict of interest regarding property sale / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 2.5 / rule 5 / Lawyers and Conveyancers Act 2006, section 3(1)(b) / section 4(b) / Sandman v McKay [2019] NZSC 41 / HELD / medical consultants did not consider the mother was in a fit state to be signing any legal documentation / lawyer is no longer in practice / nothing would be achieved by making an adverse finding against the lawyer now / the fee charged was reasonable / no substance to the allegation of a conflict of interests / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee declined to take further action / property matter / complaint opposing lawyer did not follow instructions to cancel the agreement / complainant argued that the lawyers mismanaged the transaction after settlement and did not respond in a timely manner / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 3.2 / HELD / one of the opposing lawyer’s breached rules 3 and 3.2 / breaches do not require the imposition of a disciplinary mark / none of the shortcomings engage the honesty or integrity of any of the parties / complainants unable to establish that their version of the critical events was probable / Committee’s decision confirmed / section 211(1)(a)

Review / Committee found unsatisfactory conduct / relationship property / Court granted a temporary Order for one of the complainant’s to act as a manager of property belonging to the complainant’s mother due to her health issues / complainants lodged their complaint about the lawyer’s excessive fees / considerable amount of the fees rendered resulted from the calls made to the firm by the complainant’s mother / Lawyers and Conveyancers Act 2006, section 132 / section 192 / Protection of Personal and Property Rights Act 1988, schedule 1 / section 30 / HELD / the Order was temporary / payment of the bills were to be made from the complainant’s mother’s funds / complainant not chargeable with payment of lawyer’s fees / parties resolved matters between themselves / Committee’s finding’s of unsatisfactory conduct reversed / section 211(1)(a)

Review / Committee declined to take further action / relationship property and estate matter / complaint opposing lawyers did not comply with the relevant rules when paying the legacies and charged unreasonable fees / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3.4 / rule 3.5 / Lawyers and Conveyancers Act 2006, section 351 /section 192(b) / Solicitors Trust Account Rules 1996, rule 5.8 / Trust Account Regulations 2008, regulation 12 / HELD / resolution proposed by the LCRO / no adverse finding against the lawyers / lawyers to make relevant payments to the applicants if proposal is accepted / application for review struck out / section 205(1)(a)

Complaint / Committee declined to take further action / relationship property dispute / complaint lawyers acted in a misleading manner, gave false information and breached professional obligations / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 13.5.1 / rule 13.5.3 / Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, regulation 9 / HELD / Complaints Service did not forward a copy of complaints to lawyers as complaint followed Early Resolution Service process / parties agreed not to send complaint back for reconsideration / evidence does not support lawyer misleading LCRO / court controlling proceedings rejected argument that lawyer was in conflict, which answers r 13.5 complaint / using legitimate court process is not underhanded / LINZ satisfied lawyer entitled to use LandOnline licence / other concerns appropriately addressed in other forums / Committee’s decision confirmed / section 211(1)(a) 

Complaint / Committee declined to take further action / litigation / complaint opposing lawyer communicated directly with represented client / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 10.2 / HELD / lawyer wrote directly to complainant about matters they were both represented and unrepresented in / one paragraph directed to represented matter / did not undermine principle behind r 10.2 / Committee considered this a technical breach of r 10.2 / breach does not require disciplinary response, complaint serves as a reminder of scrupulous adherence to rules / Committee’s decision confirmed / section 211(1)(a)

Review / Committee found unsatisfactory conduct / own-motion investigation following confidential report that on two occasions, lawyer inappropriately touched employees without consent / NZLS applied to review culpability determination / whether conduct should have been referred to LCDT / whether LCRO should lay charges / HELD / conduct occurred after work-related social event / constitutes conduct connected with regulated services / culpability inquiry should not generally consider external factors such as lawyer’s personal circumstances or matters unconnected with alleged breach / Committee incorrectly allowed unrelated mitigation issues to affect assessment of culpability / these factors more appropriately considered in penalty / Committee’s examination of whether force was used in incidents is incomplete / use of force requires careful and critical assessment / Committee directed to reconsider culpability for conduct without considering unrelated mitigation issues / section 209