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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)
Review / Committee declined to take further action on complaint / litigation representation / complaint lawyer failed to keep client informed / whether lawyer has a duty to advise they will be unable to complete retainer due to resignation / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 7.1 / HELD / lawyer failed to advise client they had resigned from firm / breach of rule 7.1 / apology / Committee’s decision modified to record unsatisfactory conduct pursuant to sections 12(a) and 12(c) / 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)
Date of minute: 30 October 2019 (See also decision dated 30 January 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 found unsatisfactory conduct / dealing with bankrupt client’s funds / complaint lawyer did not disclose funds held on trust for bankrupt client to Official Assignee, and used funds to pay firm’s and barrister’s outstanding fees / Insolvency Act 2006 / Lawyers and Conveyancers Act 2006, section 110 / whether firm held a lien over funds / whether lawyer entitled to rely on belief partner had approval from Official Assignee / HELD / lawyer acted without due care in contravention of Insolvency Act 2006 / Committee’s decision confirmed / reversed as to considering whether to publish practitioner’s name / 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)
Complaint / Committee declined to take further action on complaint / protection order proceedings / complaint lawyer was rude to client, pressured client into settling, and included a clause in an undertaking without instructions / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3.1 / rule 7.1 / rule 12 / rule 13.3 / whether lawyer was discourteous / whether lawyer protected client’s interests / HELD / no evidence of professional standards issue / Committee’s decision confirmed / section 211(1)(a)
Complaint / Committee declined to take further action on complaint / professional discipline proceedings / complaint lawyers not competent, and conflicted with insurer / R and N Family Trust v EL LCRO 205/2015 (27 June 2019) / Nicholson v Icepak Coolstores Ltd [1999] 3 NZLR 475 (HC) / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 6 / rule 6.1 / whether lawyers had sufficient understanding of case before providing advice / HELD / lawyers provided competent representation / no evidence that lawyers were conflicted / Committee’s decision confirmed / section 211(1)(a)
Complaint / Committee declined to take further action on complaint / dispute with council and retailer / complaint lawyers acted in excess of instructions / failed to provide client care information / fee complaint / Lawyers and Conveyancers Act (Lawyers: Client Care and Conduct) Rules 2008, rule 3.4 / rule 3.6 / rule 9 / rule 9.1 / whether lawyers were instructed to act and on what basis / HELD / no evidence of professional standards issue / legal services to be provided covered by retainer and subsequent instructions / Committee’s decision confirmed / section 211(1)(a)
Date of decision: 18 September 2019
Review / Committee declined to take further action on complaint / advice on a business purchase and lease, renewal / complaint lawyer failed to competently advise client / complainant succeeded in negligence proceedings against lawyers / Yates Property Corp Pty Ltd (in liq) v Boland (1998) 85 FCR 84 (FCAFC) / Robert Bax & Associates v Cavenham Pty Ltd [2012] QCA 177, [2013] 1 Qd R 476 / Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / HELD / vulnerable client / did not provide competent advice / although client has obtained civil remedy, unsatisfactory conduct findings warranted / Committee’s decision reversed / section 211(1)(a)
Date of decision: 3 September 2019
Review / Committee found unsatisfactory conduct / complaint lawyer communicated directly with other party by speaking at body corporate AGM / lawyer held proxy from unit owners who were in litigation against body corporate, and dissuaded other unit owners from continuing litigation / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 10.2 / whether lawyer entitled to address unit owners while body corporate represented and lawyer not present / HELD / members of body corporate are not the body corporate, but when decision to be made by majority, it is as if the body corporate is being addressed / touchstone of improper conduct is whether lawyer took “undue advantage” in absence of competing professional voice / breach of rule 10.2 / however, finding of unsatisfactory conduct not warranted as conduct was not unprofessional by a clear and distinct margin / Committee’s decision reversed / section 211(1)(a)
Complaint / Committee declined to take further action on complaint / complaint lawyer improperly issued statutory demand and commenced liquidation proceedings / Companies Act 1993 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 2.3 / HELD / no evidential basis to conclude lawyer knew debt was disputed or that proceedings were improper / Committee’s decision confirmed / section 211(1)(a)
Complaint / Committee declined to take further action on complaint / complaint lawyer failed to provide historic details relating to trust account / HELD / no evidential basis for complaint / complaint does not disclose a reasonable cause of action / abuse of process / application for review struck out / section 205(1)(a)
Complaint / Committee declined to take further action on complaint / relationship property / complaint lawyer acted for both parties on conveyancing transaction / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 3.4 / rule 3.5 / rule 6.1 / rule 7 / rule 7.1 / rule 10.1 / whether lawyer acted for both parties in conflict / whether lawyer obtained instructions and kept client informed / HELD / in context, lawyer acted for both parties with more than negligible risk of being unable to discharge obligations / did not obtain informed consent or promptly disclose all information relevant to sale / acted unilaterally to hold proceeds in trust account / $2,000 fine / $1,600 costs / Committee’s decision reversed / section 211(1)(a)
Complaint / Committee found unsatisfactory conduct / potential client incapacity / Committee found client probably lacked capacity / determined lawyer failed to protect client’s interests / HELD / Sandman v McKay [2019] NZSC 41 / duty to follow instructions put ahead of any uncertainty about client’s capacity to give instructions / nothing to alert lawyer to possibility client lacked capacity / Committee’s decision reversed / section 211(1)(a)
Review / Committee found unsatisfactory conduct / estate administration / complaint lawyers’ advice to executors not competent and reasonably careful / Lawyers and Conveyancers Act 2006, section 12(a) / injunction sought due to executors exercising power of sale without unanimous beneficiary consent / whether lawyers’ failed to give competent advice / Committee ordered over $43,000 compensation / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 7.1 / HELD / dysfunctional relationship between lawyers / one lawyer failed to give advice about Deed of Family Arrangement and consequences of lack of unanimous beneficiary consent / failed to pass on information to executors / no systemic issue in law firm / speculative that advice caused losses, compensation reversed / Committee’s decision modified / section 211(1)(a)
Complaint / Committee declined to take further action on complaint / employment relations dispute / complaint lawyer failed to follow instructions, obtain important documents, respond to inquiries, disclose a close personal relationship, and concealed documents / HELD / Auckland Standards Committee 3 v Castles [2013] NZLCDT 53 / lawyer pursued all available avenues / no persistent failure to respond to or communicate with client / no evidence establishes close personal relationship / Committee’s decision confirmed / section 211(1)(a)
Complaint / Committee declined to take further action on complaint / estate matter / complaint lawyers disclosed documents without instructions, and were slow in replying to requests / complaint motivated by court proceedings / HELD / no evidence of inappropriate disclosure or not acting promptly / review application discloses no reasonable cause of action and is an abuse of process / application for review struck out / section 205(1)(a) and section 205(1)(d)
Review / Committee found unsatisfactory conduct / complaint lawyer emailed copy of another partner’s Standards Committee determination to personal email / own motion inquiry following confidential report / whether information confidential / HELD / under ss 158(2A) and 213(2A) of the Lawyers and Conveyancers Act 2006, determinations and reviews are given to related persons / practitioners in partnership are related persons / Committee’s determination information confidential not accepted / lawyer did not misuse document / Committee’s decision modified / section 211(1)(a)
Review / Committee found unsatisfactory conduct / complaint lawyer failed to act promptly and competently on mortgage default matter / HELD / purpose of Lawyers and Conveyancers Act 2006, section 205 / no reasonable course of action is whether facts, objectively, justify reconsideration / frivolous or vexatious if obviously unsustainable / complainant’s instructions were to take lenient approach towards defaulting mortgagors / complainant liable for fees / application for review struck out / section 205(1)(a)
Date of decision: 31 July 2019
Complaint / Committee declined to take further action on complaint / bankruptcy / fee complaint / Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, regulation 29 / Cortez Investments Ltd v Olphert & Collins [1984] 2 NZLR 434 (CA) / fees issued more than two years prior to complaint / HELD / no evidence fees conditional on annulling bankruptcy / not demonstrated special circumstances exist / no jurisdiction / Committee’s decision confirmed / section 211(1)(a)