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Complaint / Committee declined to take further action on complaint / Immigration Advisers Complaints and Disciplinary Tribunal proceedings / complaint lawyer provided negligent advice and representation / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / HELD / no evidence of breach of professional standards / allegations against a lawyer must be supported by evidence / Committee’s decision confirmed / section 211(1)
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 / estate administration / complaint lawyer did not provide explanations for actions during estate administration / duties during estate administration / Davis v Mancer [2015] NZHC 3005 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 1.2 / rule 6 / rule 6.1 / rule 7.1 / Administration Act 1969 / Protection of Personal and Property Rights Act 1988 / Senior Courts (Access to Court Documents) Rules 2017 / HELD / estate’s lawyer’s client is the executor, not the beneficiaries / does not owe beneficiaries professional duties owed to clients / no evidence of professional standards issue / Committee’s decision confirmed / section 211(1)(a)
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)
Complaint / Committee declined to take further action on complaint / criminal proceedings / complaint lawyer did not take steps to recuse judge or delay trial, and ignored instructions to appeal / Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72 / Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 13 / HELD / no evidence of professional standards issue / 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 / probate and estate administration / complaint lawyer twice invoiced former client and delayed providing client file to new lawyer due to lien / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 4.4.1 / HELD / one invoice validly issued after the retainer was terminated for pre-termination attendances / however, second invoice not validly issued due to termination of retainer / reliance on lien for non-payment of second invoice inappropriate / Committee’s decision modified to reflect one invoice validly issued / penalty confirmed / section 211(1)(a)
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)
Review / Committee found unsatisfactory conduct / limited partnership representing general partner / complaint lawyer represented two entities in conflict of interest / whether retainer existed / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 6.1 / Limited Partnerships Act 2008 / HELD / lawyer represented general partner company in limited partnership but there is no evidence they represented the limited partnership / the general partner sharing information with the limited partnership does not evidence a retainer between the lawyer and the limited partnership / Committee’s decision reversed / unsatisfactory conduct finding reversed / 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 / 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 / liquidation matter / complaint by unsecured creditor that lawyer’s fee and structure unfair / lawyer entered a conditional fee agreement with liquidator / Committee decided applicant not a person chargeable and declined jurisdiction to consider complaint / Lawyers and Conveyancers (Lawyers: Conduct and Client Care) Rules 2008, rule 1.2 / rule 9 / Weathertight Homes Resolution Services Act 2006 / HELD / applicant not a party to fee agreement / lawyer acted for liquidator not applicant / applicant not a person chargeable with respondent’s bill of costs / Committee’s decision confirmed / section 211(1)(a)
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 to take further action on complaint / lease renewal / complaint lawyer acted beyond instructions and did not seek payment from landlord for lawyer’s fees / Hunstanton v Camborne LCRO 167/2009 (10 February 2010) / Chean v Kensington Swan HC Auckland Civ-2006-404-1047, 7 June 2006 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9 / rule 9.1 / HELD / no evidence of professional standards issue / focus of complaint is on landlord’s failure to cover fees / fees reasonable / 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 declined to take further action on complaint / estate administration / complaint lawyer opposed beneficiary in family protection claim and did not provide information / fee complaint / lawyer sole executor and trustee of estate / Administration Act 1969, section 26 / Family Protection Act 1955, section 11 / Hunstanton v Cambourne LCRO 167/2009 (February 2010) / Re Murphy’s Settlements [1998] 3 All ER 1 / Jemma Trust Co Ltd v Liptrott [2003] EWCA Civ 1476 / HELD / although best practice, lawyer not required to provide bill of costs to complainant in these circumstances / lawyer’s involvement in family protection claim and payments to third parties from estate, in executor capacity / section 211(1)(b) / Committee directed to determine fee complaint / section 209(1)(a) / Committee’s decision otherwise confirmed / section 211(1)(a)
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 / employment dispute / complaint opposing lawyers committed crimes during proceedings / HELD / review application an attempt to relitigate employment dispute / Committee’s decision 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)
(See also minute dated 30 October 2019, decision dated 29 November 2019 and decision as to publication dated 17 February 2020)
Date of decision: 29 November 2019 (See also list of evidence, minute dated 30 October 2019 and decision as to publication dated 17 February 2020).
Complaint / Committee declined to take further action on complaint / enforcement proceedings / complaint lawyer failed to competently represent client and terminated retainer without good cause / Auckland Standards Committee 3 v Castles [2013] NZLCDT 53 / LCRO 262/2014 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 4.1 / rule 4.2 / rule 4.2.1 / HELD / evidence does not demonstrate inadequate representation / not task of Standards Committee or LCRO to provide overarching supervision of litigation strategies / lawyer did not have capacity to attend to charging order, which required urgent response / fully informed client and received instructions to transfer file / retainer ended by consent / Committee’s decision confirmed / section 211(1)(a)
Review / Committee found unsatisfactory conduct / protection order / complaint lawyer did not provide adequate final account and exceeded estimate / fee complaint / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 7.2 / rule 9 / rule 9.3 / rule 9.4 / rule 9.6 / rule 9.7 / Lawyers and Conveyancers Act (Trust Account) Regulations 2008, regulation 9 / regulation 10 / Lawyers and Conveyancers Act 2006, section 110 / HELD / no evidence estimate was provided or that lawyer failed to provide invoice / final account met rule 9.7 / breach of rule 7.2 / did not provide information on request / lawyer stated they may withdraw discount offered if information request was sustained / Committee’s decision modified to record breach of r 7.2 / section 211(1)(a)
Review / Committee found unsatisfactory conduct / Family Court proceedings / complaint lawyer failed to protect interests and act in accordance with fiduciary duties / fee complaint / Family Court set aside relationship property agreement / Committee ordered $150,000 fee refund / Property (Relationships) Act 1976, section 21 / P v H LCRO 02/2009 / TJ v DM LCRO 261/2016 / HELD / elements of joint complaint vexatious / evidence does not support allegations in complaint / Committee may not order refund exceeding fees paid / lawyer kept client informed and provided competent advice / no evidence of assurances that costs position was secure / retainer uncertain with litigation risk / no further action on fee complaint as joint complaint vexatious / section 211(1)(b) / Committee’s decision reversed / section 211(1)(a)