Ministry of Justice

Complaint / Committee declined to take further action on complaint / criminal proceedings / complaint lawyer incorrectly invoiced, charged fees not agreed to, and did not follow instructions / HELD / no evidence of breach of professional standards / application for review discloses no reasonable cause of action / application for review struck out / section 205(1)

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

Complaint / Committee found unsatisfactory conduct / immigration application / complaint lawyer did not act in a timely manner, charged fees that were more than fair and reasonable, and that their practice did not preserve the reputation of the legal profession / fee complaint / client overpaid invoice / Committee ordered publication of name / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 9 / HELD / instructing solicitor does not appear to have been involved in relationship between client and lawyer / Standards Committee directed to investigate instructing solicitor and overpayment of invoice issue / section 209(1) / lawyer achieved nothing of value for client / publication order confirmed / Committee’s decision confirmed / section 211(1)(a).  (See also minute dated 30 October 2019)

Complaint / Committee found unsatisfactory conduct / property transaction and land registration / complaint lawyer incorrectly registered property in the name of trustees rather than the client, acted for more than one client, and failed to terminate retainers / Sandy v Kahn LCRO 181/2009 (9 December 2009) / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 1.2 / rule 3 / rule 6 / rule 6.1 / rule 6.1.2 / HELD / insufficient evidence to determine what instructions were given regarding registration of property / more than negligible risk of conflict / parties required independent advice / Committee’s decision confirmed / section 211(1)(a)

Review / Committee found unsatisfactory conduct / property transaction / complaint lawyer emailed represented client and others directly, alleging their lawyer’s negligence / disputed interpretation of legislation / Unit Titles Act 2010 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 10.1 / rule 10.2 / HELD / unsatisfactory conduct found / breach of rule 10.1 / degree and extent of lawyer’s negligence allegations breach rule 10.1 / $2,000 fine and apology ordered / unable to conclude that lawyer knowingly and deliberately directly communicated with represented client; no finding lawyer breached rule 10.2 / legal executive breached personal obligation to act responsibly when sending the emails, but no penalty due to subservient position / Committee’s decision modified / section 211(1)

Review / Committee found unsatisfactory conduct / administration of estate / complaint lawyer retained portion of estate funds to cover potential claims and did not sufficiently progress administration / dual role when lawyer also acts as executor / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 7.1 / rule 12 / Davis v Mancer [2015] NZHC 3005 / Auckland Standards Committee v Johnston [2011] NZLCDT 14 / Waikato Bay of Plenty Standards Committee No. 1 v Campion [2019] NZLCDT 20 / HELD / conduct not captured by rule 7.1 which is directed towards clients / lawyers owe duties under rule 12 to third parties, including beneficiaries / no progress in administering estate for several years / breach of section 12(a) / Committee’s decision modified to reduce fine from $3,000 to $1,000 / Committee’s decision otherwise confirmed / section 211(1)(a)

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 / criminal proceedings / complaint lawyer breached client’s privilege during complaint to NZLS / application for review of decision not to instigate an own-motion inquiry / Lawyers and Conveyancers Act 2006, section 193 / HELD / the LCRO cannot direct a Standards Committee to begin an own-motion inquiry / no evidence of professional standards issue / no jurisdiction

Complaint / Committee declined to take further action on complaint / purchase of land subject to easement / complaint complainants purchased land with no benefit to them / request for compensation / Lawyers and Conveyancers Act 2006, section 156(1)(d) / HELD / potential future losses not compensable / time and energy in complaints process not compensable / complainants committed to purchase before instructing lawyer / Committee’s decision confirmed / section 211(1)(a)

Complaint / Committee declined jurisdiction as complaint res judicata / lawyer’s nominee company’s compliance with regulations / review application on the basis Committee wrong to determine it had no jurisdiction / HELD / standing / complainant does not have sufficient personal interest to support complaint / substance of complaint has been addressed / further action on complaint not necessary or appropriate / section 211(1)(b)

Review / Committee found unsatisfactory conduct / conveyancing transaction settlement / complaint lawyer’s conduct created impression settlement could not take place / Court of Appeal determined lawyer’s conduct conveyed impression problem had not been solved / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 10 / rule 10.1 / rule 11 / rule 11.1 / Fair Trading Act 1986 / BC v YT LCRO 215/2010 (April 2011) / RP v LP LCRO 292/2011 (October 2012) / JW v QE LCRO 192/2011 (September 2012) / R v D LCRO 56/2009 / HELD / breach of rule 10 and rule 10.1 / failed to advise problem solved / Committee’s decision modified to record breach of rule 10 and rule 10.1 and contravention of section 12(c) / Committee’s decision otherwise confirmed / section 211(1)(a)

Complaint / Committee declined to take further action on complaint / Commerce Commission investigation / complaint lawyer alleged breaches of consumer law / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 10.1 / rule 13 / rule 13.8 / rule 13.8.1 / rule 13.8.2 / Medcalf v Weatherill [2002] UKHL 27 / Schmidt v Pepper New Zealand (Custodians) Ltd [2012] NZCA 565 / submissions were requests for inquiry, not allegations of criminal offending / rule 13.8 requires allegations of reprehensible conduct to have reasonable grounds, not concrete evidence / Committee’s decision confirmed / section 211(1)(a)