Ministry of Justice

Review / Committee found unsatisfactory conduct / Family Court proceedings / judge referred Minute addressing lawyer’s behaviour to NZLS as complaint / own-motion inquiry / complaint lawyer acted as a witness and incorporated opinion (views on the evidence) in a memorandum / Evidence Act 2006, section 129 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 13.5 / rule 13.5.4 / H v S (Counsel: Debarment) [2016] NZHC 409 / HELD / lawyer annexed scientific papers to client’s affidavit about their methamphetamine use / rule 13.5 breached / lawyer familiar with scientific matters / client’s affidavit recites lawyer’s scientific qualifications and contained evidence by proxy from the lawyer / absolute requirement for lawyer to maintain their independence when conducting litigation before court / total prohibition on lawyers presenting evidence to the court / insufficient time and client funds to obtain expert evidence as to scientific evidence on methamphetamin…

Complaint / Committee declined to take further action on complaint / property settlement matter / complaint lawyer provided incompetent advice, and did not follow up with vendor’s lawyer to confirm whether an extension had been granted / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / HELD / whether lawyer responsible for ascertaining if an extension of time has been agreed to must be considered on its particular facts / client was aware of time available for extension to be granted / no evidence client would confirm contract if extension not granted / no evidence lawyer provided incompetent advice / Committee’s decision confirmed / section 211(1)(a)

Jurisdiction / whether application for review made out of time / application delayed by courier / Lawyers and Conveyancers Act 2006, section 198 / Lawyers and Conveyancers Amendment Act 2012 / Interpretation Act 1999, section 29 / Contract and Commercial Law Act 2017, section 211 / KX v WA LCRO 84/2012 (30 April 2012) / UQ v OI LCRO 19/2013 (2 April 2013) / HELD / application filed out of time / review officer has no discretion to extend timeframe / proof of service / no legislation that precludes email as a method of filing or service / five working day presumption in section 198 is rebuttable / no jurisdiction

Review / Committee declined to take further action on complaint / notice of claim and caveat in relationship property matter / complaint lawyer did not take reasonable care in respect of notice of claim / fee complaint / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 9 / rule 9.1 / HELD / lawyer did not obtain post-registration search to confirm registration of notice of claim / admitted breach of rule 3 / fees fair and reasonable / Committee’s decision reversed / unsatisfactory conduct pursuant to section 12(c) for breach of rule 3 / $500 fine ordered / section 211(1)

Complaint / Committee declined to take further action on complaint / employment relations matter / complaint lawyer failed to act competently, respond to inquiries, keep client informed about progress on case or treat them with respect and courtesy / fee complaint / client felt pressured to sign settlement agreement / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 9 / HELD / no evidence of breach of professional standards regarding complaint / opposing party issued deadline for settlement agreement / invoice narration suggests two invoices may be issued for same work / during application for review, lawyer failed to provide evidence supporting invoices requested under s 207 of the Lawyers and Conveyancers Act 2006 / Committee’s decision confirmed / section 211(1)

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)