Ministry of Justice

Date of decision: 15 October 2018

Review / Committee found unsatisfactory conduct / lawyer acted for legally aided client / client terminated retainer / lawyer did not appear in court / Court required lawyer to seek leave to withdraw as counsel and an explanation their non-attendance / lawyer wrote a memorandum to the court highly critical of client / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 10 / rule 13 / rule 13.8 / proper standards of professionalism / lawyer’s duty not to attack reputation / HELD / lawyer must inform the Court if the retainer is terminated / content of memorandum was not professional / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee declined to take further action on complaints / administration of estate / dispute between executors / joint instructions / lawyer acted for the estate / complaint lawyer acted when there was a conflict of interest between executors / failed to provide a letter of engagement / fee complaint / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3.4 / rule 6.1 / rule 9.1 / HELD / lawyer only acted on joint instructions  / lawyer’s duties were to the estate / lawyer voluntarily reduced fees / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee declined to take further action on complaints / dissolution of business partnership / lawyer had acted for both partners / complaint of conflict of interest / use of confidential information / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 6.1 / rule 8.1 / HELD / lawyer was not acting for applicant / applicant legally represented / disclosures made were not confidential information / Committee’s decision confirmed / section 211(1)(a)

Review / Committee found unsatisfactory conduct against NS and TD / NS and TD both lawyers / Family Court proceedings / NS had a conflict of interest when acting for multiple parties in the dispute / continued to act when evidence from former client was at issue in the proceedings / TD wrongfully disclosed information when making a complaint against NS / Evidence Act 2006, section 53 / section 57 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 2.8 / rule 2.9 / rule 6  / rule 6.1 / rule 6.1.1 / Sandy v Khan LCRO 181/2009 (9 December 2009) / use of privileged information / whether disclosure permitted / lawyers duty to report misconduct / HELD / conflict of interest as NS would unable to discharge all duties to clients / NS unable to challenge evidence without breaching duty of confidence to former client / TD able to fulfil duty to report misconduct without use of privileged material / Committee’s decision confirmed / section 211(1)(a)

Review / Committee found unsatisfactory conduct / own motion investigation / renewals of mortgages without providing a property valuation / Lawyers and Conveyancers Act (Lawyers: Nominee Company) Rules 2008, rule 13 / schedule 4, paragraph 8 / Auckland Standards Committee 2 v Burcher [2015] NZLCDT 47 / AP v ZG LCRO 278/2012 (14 March 2012) / BD v GA 186/2013 (5 May 2014) / whether a valuation was required upon renewal of the loan / HELD / renewal of a loan is the same as an investment / not all partners played a significant role in the nominee company / censure reversed / Committee’s decision otherwise confirmed / section 211(1)(a)

Complaint / Committee declined to take further action on complaints / employment dispute / applicant uplifted files / complaint lawyers did not send the complete file / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 11 / HELD / lawyers not responsible for file once supplied to another lawyer / no evidence to support allegations / Committee’s decision otherwise confirmed / section 211(1)(a)

Review / Committee found unsatisfactory conduct / agreement to purchase property and for construction of a house / deposit held by stakeholder / deposit paid to builder / lawyer failed to recognise the nature of the undertaking given by the builder’s lawyer and seek clarification / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 3.2 / rule 7 / rule 7.1 / rule 7.2 / rule 10.3.2 / KD v WW LCRO 83/2011 (30 March 2011) / duty to advise clients and ensure they understand retainer / HELD / lawyer failed to respond to clients’ request for advice / builders lawyer did not give an undertaking / issues of contractual interpretation are matters for the court to consider / Committee’s decision confirmed / section 211(1)(a)

Review / Committee found unsatisfactory conduct / lawyers were trustees of a family trust / fees not fair and reasonable / invoices not rendered in a reasonable time / lawyer had not issued a letter of engagement / failed to advise executors of their power to appoint trustees / did not allow uplifting of files / used legal processes for improper purposes / breach of Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 2.3 / rule 3 / rule 3.2 / rule 5 / rule 5.1 / rule 5.2 / rule 5.4 / rule 6 / rule 9 / rule 9.6 / instructing solicitor ordered to pay barrister / HELD / documents held for legitimate purpose / no obligation to forward documents / reduction of fees modified / breaches of rules 9 and 9.6  confirmed / other rule breaches reversed / Committee’s decision otherwise confirmed / section 211(1)(a). See also decision addendum/correction dated 12 November 2018.

Complaint / Committee declined to take further action on complaint / estate dispute / lawyers were executors and trustees of estate / complaint about sale of property to beneficiary of estate / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 7 / rule 7.1 / Hansen v Young [2004] 1 NZLR 37 (CA) / Morpeth v Ramsey LCRO 110/2009 (12 November 2009) / whether lawyers providing regulated services / HELD / partners in firm cannot be subject of complaint if they have not been involved / actions taken as trustee not reviewable by Office / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee declined to take further action on complaints / division of relationship property / complaint lawyer was not competent / failed to follow instructions / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / HELD / no evidence to support complaints / Office not appropriate forum for appeal of Family Court decisions / Committee’s decision modified / section 211(1)(a)

Complaint / Committee declined to take further action on complaints / property purchase / lawyer acted for vendor and purchaser / complaint lawyer failed to explain fees / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3.4 / Wilson v Legal Complaints Review Officer [2016] NZHC 2288 / provision of information to client / conduct rules not to be enforced in an overly technical manner / HELD / fees fair and reasonable / breach of rule 3.4 excusable rather than unsatisfactory conduct / Committee’s decision confirmed / section 211(1)(a)