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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)
Complaint / Committee declined to take further action on complaint / company insolvency / conduct prior to 1 August 2008 / complaint lawyer engaged in misconduct / HELD / no evidence of professional standards issue / costs against lay applicant / reasons for engaging disciplinary process difficult to identify, motivation for complaint stated as compensation / Lawyers and Conveyancers Act 2006, section 210(1) / $900 costs order / Committee’s decision confirmed / section 211(1)(a)
Review / Committee found unsatisfactory conduct / property dispute / complaint lawyer failed to act in client’s best interests / failed to present counter-offer / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 13.3 / failed to incorporate term into settlement / insufficient evidence of failure to provide alternative options / HELD / duties regarding instructions during litigation / Gilbert v Shanahan [1998] 3 NZLR 529 (CA) / Hall v R [2015] NZCA 403 / R v Pointon [1985] 1 NZLR 109 (CA) / applicant unable to prove on balance of probabilities lawyer instructed to make counter-offer and failed to advise litigation alternatives / lawyer did not keep file note of relevant interaction / Committee’s decision reversed / section 211(1)(a)
Complaint / Committee declined to take further action on complaint / property dispute / complaint respondent failed to act in applicant’s best interests / fee complaint / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9 / rule 9.1 / whether fees fair and reasonable / seven invoices not considered fair and reasonable by assessor / Committee did not consider junior barrister’s fees and additional issues / Cortez Investments Ltd v Olphert & Collins [1984] 2 NZLR 434 (CA) / AT v ZH LCRO 127/2013 (26 March 2014) / Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, regulation 29 / HELD / invoices under $2,000 relate to a single legal service, special circumstances found / no fee reduction necessary on the facts as respondent’s fees fall within acceptable range / Committee to reconsider junior barrister’s fees and additional issues / Committee’s decision otherwise confirmed / section 211(1)(a) / section 209(1…
Review / Committee found unsatisfactory conduct / complainant liable for barrister’s fees / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 10.7 / whether there was a fixed fee agreement / HELD / no evidence of a fixed fee agreement / Committee’s decision confirmed / section 211(1)(a)
Review / Committee found unsatisfactory conduct / estate administration / jointly held property / lawyer acted for husband and wife / husband died / conflict of interest / failed to administer estate in timely manner / failed to act competently / Committee ordered publication of determination and lawyer’s name / Property (Relationships) Act 1976 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 6.1 / rule 8.7.1 / public confidence in legal profession / consumer protection / disciplinary history / HELD / lawyer’s advice on estate administration wrong / could not act for estate and wife / conflict of interest / appropriate lawyer’s name is published / Committee’s decision confirmed / section 211(1)(a)
Review / Committee found unsatisfactory conduct / estate administration / complaint lawyer deducted fees from trust account / Lawyers and Conveyancers Act 2006, section 110 / Lawyers and Conveyancers Act (Trust Account) Regulations 2008, regulation 9 / whether authority to deduct fees had been revoked / delay in issuing invoice / HELD / authority to deduct fees had not been revoked / delay in issuing invoice unsatisfactory / Committee’s decision modified / section 211(1)(a)
Date of decision: 28 June 2019
Review / Committee found unsatisfactory conduct / preparation of will / lawyer failed to release client’s files to new lawyers in reasonable time / failed to render bill in reasonable time / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 4.4.1 / rule 9.6 / Wilson v Legal Complaints Review Officer [2016] NZHC 2288 / whether delay in releasing files unreasonable / whether fees charged for work not done / HELD / delay of over a month unreasonable / fees charged for copying files unreasonable / unsatisfactory conduct / lawyer failed to act promptly on instructions / Committee’s decision confirmed / section 211(1)(a)
Complaint / Committee declined to take further action on complaint / arbitration clause dispute / complaint lawyer failed to act competently / fee complaint / Arbitration Act 1996, section 11 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 9 / rule 9.1 / whether lawyer’s fees for copying files were unreasonable / HELD / lawyer acted competently / fees charged for copying files unreasonable / unsatisfactory conduct / Committee’s decision modified / section 211(1)(a)
Review / Committee found unsatisfactory conduct / relationship property proceedings / lawyer’s client was trust / failure to provide terms of engagement to all trustees / failure to report to all trustees / lawyer seeks review of orders / reverse brief / whether lawyer acting for applicant / whether applicant liable for fees / HELD / complainant was trustee / Office has no jurisdiction on questions of liability for fees / no evidence to support lawyer’s arguments on review / Committee’s decision confirmed / section 211(1)(a)
Complaint / Committee declined to take further action on complaint / employment dispute / complaint lawyer acted without instructions and breached privilege / Evidence Act 2006, section 54 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 8.4(g) / B v Auckland District Law Society [2004] 1 NZLR 326 (PC) / Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 447 (CA) / whether privilege has been waived / HELD / applicant waived privilege / no conduct issues arise / Committee’s decision confirmed / section 211(1)(a)
Complaint / Committee declined to take further action on complaint / advice about employment contract / Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committee) Regulations 2008, regulation 29 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9 / fees less than $2,000 / HELD / no jurisdiction to consider fees less than $2,000 / Committee’s decision confirmed / section 211(1)(a)
Complaint / Committee declined to take further action on complaint / preparation of will / will-maker died before signing new will / complaint lawyer failed to act in a timely manner / did not follow instructions / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 7 / rule 7.1 / Gertside v Sheffield, Young & Ellis [1983] NZLR 37 (CA) / Rosenberg Estate v Black (2001) ACWS (3d) (ONCJ) / whether lawyer followed up instructions with client / HELD / lawyer should have followed up with client / breach of rule 3 / breach of rule 7.1 / unsatisfactory conduct / no other conduct issues arise / Committee’s decision modified / section 211(1)(a)
Complaint / Committee declined to take further action on complaint / property dispute / no access to property / complaint lawyer failed to give appropriate advice / whether lawyer acting for applicant / conduct prior to 1 August 2008 / HELD / lawyer never acted for applicant / no evidence of professional standards issue / Committee’s decision confirmed / section 211(1)(a)
Review / Committee found unsatisfactory conduct / protection order and relationship property proceedings / lawyer seeks review of orders / barrister sole / did not have instructing solicitor / failed to provide required information prior to commencing retainer / failed to act in a timely and competent manner / did not issue invoices / breached trust account rules / Lawyers and Conveyancers Act 2006, section 110 / Lawyers and Conveyancers Act (Trust Account) Regulations 2008, regulation 9 / regulation 10 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 3.4A / rule 9.4 / rule 9.6 / rule 14.2(e) / rule 14.4 / whether fees fair and reasonable / HELD / lawyer charged fees for work not completed / lawyer ordered to refund fees / Committee’s decision otherwise confirmed / section 211(1)(a)
Complaint / Committee declined to take further action on complaint / estate administration / instructions for new will / will-maker died before instructions carried out / lawyer failed to send invoice / did not act in a competent and timely manner / failure to file estate tax returns / Lawyers and Conveyancers Act (Trust Account) Regulations 2008, regulation 9(2) / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / administration of mortgage / HELD / lawyer acting for estate / lawyer administered mortgage correctly / lawyer should refund costs due to failure to file tax returns / Committee’s decision otherwise confirmed / section 211(1)(a)
Review / Committee found unsatisfactory conduct / lawyer made allegations attacking reputation / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 2.8 / rule 13.8 / obligation to report misconduct / whether lawyer had good cause to make allegations / trust account accuracy / HELD / lawyer had reasonable grounds to make allegations / risk lawyer could not meet obligations to both clients / breach of rule 6.1 / unsatisfactory conduct / Committee’s decision reversed / section 211(1)(a)