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QK v JF [2019] NZLCRO 69 (29 May 2019)

Last Updated: 15 June 2019


LCRO 35/2017

CONCERNING
an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND

CONCERNING
a determination of the [Area] Standards Committee

BETWEEN
QK

Applicant

AND
JF and EG

Respondents

DECISION

The names and identifying details of the parties in this decision have been changed.

Introduction


[1] Ms QK has applied for a review of a decision by the [Area] Standards Committee (the Committee) to take no further action in respect of her complaint concerning the conduct of the respondents, Messrs JF and EG.

Background


[2] Ms QK was instructed to act for Ms K on the sale of a residential property.

[3] Before settlement was concluded, Ms QK terminated the retainer.

[4] Ms K instructed XYZ Legal, a conveyancing division of the law firm [Law firm] (the firm) to finalise the purchase.
[5] A junior practitioner in the firm was assigned the task of completing settlement. Mr JF was the partner in the firm who had overall responsibility for the file. Mr EG is a senior partner in the firm.

The complaint and the Standards Committee decision

General Comments


[6] Ms K filed a complaint against Ms QK. That complaint has been the subject of a Standards Committee inquiry and decision, and the subject of a review to the Legal Complaints Review Office.

[7] I was the Legal Complaints Review Officer (LCRO) who considered Ms QK’s review of the Committee’s determination in respect to Ms K’s complaint about Ms QK. In the course of completing that review, I acquired a thorough understanding of the conveyancing transaction, and the circumstances leading up to the firm being instructed to finalise the settlement.

[8] Ms QK lodged her complaints with the New Zealand Law Society Complaints Service (Complaints Service) on 8 August 2016.

[9] In the comprehensive submissions filed by the parties in support of and responding to the complaint and the review applications, there is a considerable degree of overlap with Ms K’s complaint.

The JF complaint


[10] Ms QK made complaint that Mr JF:

The EG complaint


[11] Ms QK made complaint that Mr EG:

(b) was deceptive and misleading in his dealings with her.

[12] The Committee delivered its decision on 14 December 2016.

Application for review


[17] Ms QK filed an application for review on 27 January 2017.
[18] In respect to Mr JF, she submitted that the Committee had:

(a) fabricated information in delivering its determination;
[19] Ms QK also complained that she had not been provided with a copy of Mr JF’s submissions.

[20] In respect to Mr EG, Ms QK submitted that the Committee had:

[21] In his response to the review application, Mr JF submitted that:
[22] Mr EG, in his response to the review application, submitted that:

Review on the papers


[23] The parties have agreed to the review being dealt with on the papers. This review has been undertaken on the papers pursuant to s 206(2) of the Act, which allows a LCRO to conduct the review on the basis of all information available if the LCRO considers that the review can be adequately determined in the absence of the parties.

[24] I record that having carefully read the complaint, the response to the complaint, the Committee’s decision and the submissions filed in support of and in opposition to the application for review, there are no additional issues or questions in my mind that necessitate any further submission from either party. On the basis of the information available, I have concluded that the review can be adequately determined in the absence of the parties.

Nature and scope of review


[25] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:1

... the power of review conferred upon Review Officers is not appropriately equated with a general appeal. The obligations and powers of the Review Officer as described in the Act create a very particular statutory process.

The Review Officer has broad powers to conduct his or her own investigations including the power to exercise for that purpose all the powers of a Standards Committee or an investigator and seek and receive evidence. These powers extend to “any review” ...

... the power of review is much broader than an appeal. It gives the Review Officer discretion as to the approach to be taken on any particular review as to the extent of the investigations necessary to conduct that review, and therefore clearly contemplates the Review Officer reaching his or her own view on the evidence before her. Nevertheless, as the Guidelines properly recognise, where the review is of the exercise of a discretion, it is appropriate for the Review Officer to exercise some particular caution before substituting his or her own judgment without good reason.

1 Deliu v Hong [2012] NZHC 158, [2012] NZAR 209 at [39]–[41].

[26] More recently, the High Court has described a review by this Office in the following way:2

A review by the LCRO is neither a judicial review nor an appeal. Those seeking a review of a Committee determination are entitled to a review based on the LCRO’s own opinion rather than on deference to the view of the Committee. A review by the LCRO is informal, inquisitorial and robust. It involves the LCRO coming to his or her own view of the fairness of the substance and process of a Committee’s determination.


[27] Given those directions, the approach on this review, based on my own view of the fairness of the substance and process of the Committee’s determination, has been to:

Analysis


[28] I propose to address the following issues in determining this review:

(b) Is there evidence of the Committee having acted in bad faith?

2 Deliu v Connell [2016] NZHC 361, [2016] NZAR 475 at [2].

(g) Did Mr JF offend against the Rules and cause distress and damage to Ms QK’s reputation by criticising the manner in which Ms QK had managed aspects of the conveyancing transaction to his client?

(h) Did Mr JF fail to extend the necessary degree of courtesy and respect to Ms QK?

(i) Did Mr EG make false assertions about Ms QK?

(j) Was Mr EG deceptive and misleading in his dealings with Ms QK?

General Comments


[29] At the conclusion of its decision, the Committee noted that the practice of law can be a robust profession, in which it is not uncommon for practitioners to engage in spirited defences on behalf of their colleagues and clients.

[30] In what presented as a mild rebuke to the parties, the Committee noted that it was a significant step for a practitioner to file a complaint against a fellow practitioner and a step that should not be taken lightly. Further, the Committee noted that issues in dispute between practitioners should be raised in a mature/professional manner, and that it was unfortunate in this particular case, that the situation had unfolded as it did, and that both parties had considered it necessary to provide such a large volume of material to support their positions.

[31] Having carefully read all of the material on the file, I find myself in agreement with the Committee. It was unnecessary for such expansive submissions to be filed at the complaint stage and significantly added to on review. I would go further and say that it has been unproductive.

[32] I am reluctant to cast the net of broad generalisation over a review process which demands careful examination of each relevant issue raised, but what is compellingly apparent is that the complaints, when reduced to their essence and trimmed of their exaggerative and extreme elements, engage issues that are straightforward.

[33] The genesis for the complaints lay in a disagreement between lawyers over the appropriate procedure for executing documents to ensure compliance with LINZ requirements.

[34] When Ms QK transferred her file, further disagreements arose over issues arising from Ms QK’s indication that she intended to deduct fees from funds held. As

the matter progressed, concerns were raised as to whether funds held by Ms QK would be transferred in sufficient time to enable settlement to proceed.


[35] These were matters that were properly capable of resolution without the need for recourse to the disciplinary complaints process.

[36] Once the spectre of disciplinary complaint was raised however, matters escalated.

[37] Accusations were made that the lawyers had:

[38] It is Ms QK who must take responsibility for escalating matters to a level which was totally disproportionate to the importance of the issues involved.

[39] In advancing her complaints, and her review application, she frequently elevated matters of relatively minor disagreement to a fractious level that introduced allegation of serious professional misconduct.

[40] Having had their reputations challenged by accusation that they had been dishonest and deceptive, Mr JF and Mr EG understandably felt the need to provide comprehensive response to the allegations.

[41] What then followed was the filing of extensive submissions where point by point responses were being provided to the ever expanding material.

[42] It has frequently been observed that it is a serious matter for a lawyer to initiate a complaint against a colleague.

[43] A decision to do so should not be taken lightly. Once made, a lawyer can be expected to articulate the complaint concisely, accurately and responsibly.

[44] A complaint should not be expanded in the course of the inquiry process by the addition of further complaints, unless there are sound grounds to do so.

[45] When advancing or responding to a complaint, practitioners should be acutely mindful that a serious attack on a fellow practitioner’s reputation, particularly to the extent that the accusation is of a practitioner having lied or engaged in misleading or deceptive conduct, should not be made on the basis of speculation or assumption.
[46] Ms QK was entitled to bring complaints against Mr JF and Mr EG, but in doing so, she had a responsibility to ensure that her criticisms were temperate and measured, and importantly if of a nature which alleged serious misconduct on the part of the lawyers, were supported by evidence of sufficient substance to sustain the serious allegations being made.

[47] In the course of what has become a lengthy decision, I have nevertheless not canvassed or mentioned every element and aspect of the materials that have been put before me from the parties.

[48] It is only right that litigants/applicants/respondents should be able to understand what has led a court or tribunal to the outcome reached. But that does not mean that a decision writer is obliged to refer to, let alone discuss, every aspect of each party’s case.

[49] This Office has previously said on this topic:3

As to the complaints in the motion that the Court did not deal with certain submissions ... it may be observed that a belief on the part of counsel ... that his argument has not been fully understood or adequately discussed is by no means uncommon ... The Court is not obliged in giving its reasons for judgment to discuss every aspect of argument.


[34] The Court went on to refer to the observations of Diplock LJ in Hardwick Game Farm v Suffolk Agricultural Poultry Producers Assn Ltd:

In giving its reasons for judgment [a Court] is not composing a general lecture upon a legal topic: it is setting out as succinctly as the time available for preparation permits, those propositions of law which it considers are correct, and which are essential steps in the decision it has reached in the particular case. It is not obliged to state an answer to the arguments against the propositions of law which it accepts as correct and relevant to its decision whether such arguments have been addressed by counsel or not.


[35] Those principles apply equally, if not more so, to determinations by a Standards Committee (and this Office) where allegations and submissions by (in particular) complainants, are often made in a ‘scatter-gun’ manner and often without merit or substance. It would be an appalling misuse of the resources of Standards Committees and this Office, if the requirement is to specifically address every allegation and submission.

(citations omitted)

3 ZA v YB LCRO 39/2016 (15 February 2017).

[50] That said, I have addressed all the points of significance raised by Ms QK on review.

Is there evidence of the Committee having acted in bad faith?


[51] Ms QK’s submissions are underpinned by a relentless and repetitive attack on the integrity of the Committee members who conducted inquiry into her complaints.

[52] In the first paragraph of her submissions, Ms QK makes accusation that members of the Committee had provided a misleading account of events, with deliberate purpose to divert attention from Ms QK’s complaint. That sets the tone for what follows.

[53] It is difficult to overestimate the force of that submission. It is allegation that strikes at the heart of the Committee’s obligation to conduct its inquiry fairly and independently.

[54] In the course of her submissions, Ms QK makes complaint that the Committee had:

[55] It would be obvious that the allegations made by Ms QK, would be considered to be amongst the most serious that could be levelled at independent decision makers.

[56] Those allegations, if established, would be immediately disqualifying of the lawyer members of the Committee’s ability to continue in their roles, and indeed, potentially cast doubt on the ability of those lawyers to continue in practice.
[57] Lawyers have fundamental obligations to uphold the rule of law and to facilitate the administration of justice.

[58] A lawyer must not attempt to obstruct, prevent, pervert or defeat the course of justice.

[59] Conduct of the nature complained of by Ms QK, falls within the category of conduct which unquestionably would constitute obstruction and the perverting of the course of justice.

[60] Further, it is conduct that as Mr EG correctly asserts, ensnares the lawyers complained of in the web of allegation that they too have behaved egregiously.

[61] Ms QK argues that the Committee approached its inquiry with purpose to ensure a favourable outcome for the lawyers. To achieve that, the Committee members ignored her evidence, fabricated evidence, and acted corruptly.

[62] Ms QK provides no explanation as to why lawyers entrusted with the responsibility and obligation to conduct a fair and impartial inquiry would compromise their personal and professional reputations in such an egregious fashion.

[63] She appears to be suggesting that the Committee members had a personal interest in ensuring a favourable outcome for the lawyers.

[64] This extraordinary inference (and it is the only one that can reasonably be drawn other than the equally improbable proposition that all the Committee members harboured a personal animus towards Ms QK) inevitably compels Mr EG and Mr JF to respond to suggestion that the Committee members were promoting their interests. They do so by recording that they had no knowledge of the composition of the Committee. Mr EG notes that to the best of his recollection, he does not personally know any lawyer currently practising in the [City] District.

[65] Ms QK does not approach her analysis of the Committee’s decision with any indication of a careful, thoughtful or reflective consideration of the issues, but rather by launching trenchant attacks on the integrity of the Committee members, entirely unsupported by evidence.

[66] Fundamental to the effective functioning of a Standards Committee is the requirement that Committee members bring to their role an unrelenting commitment to

ensuring that their inquiry is conducted fairly, and without any hint of suggestion that the interests of one party are preferred over the other.4


[67] The requirement for Committee members to be fair, unbiased, lacking in conflict and independent is so fundamental and well understood, that it approaches the trite to emphasise those requirements.

[68] In making such serious allegations, Ms QK has an obligation to provide substantive evidence to substantiate the allegations made.

[69] Standards Committees are made up of practising lawyers, familiar with the practice of law including the conduct of litigation in the Courts, as well as lawyers’ duties and obligations and the pressures under which lawyers often find themselves. Standards Committees must also include a lay member. This format allows for a range of views — legal and non-legal — to be considered.

[70] Members of Standards Committees are appointed by the New Zealand Law Society (NZLS).5

[71] Where any person is appointed as a member of a Standards Committee, that appointment is to be notified to the Minister of Justice.6

[72] Each Standards Committee is to comprise at least three persons (commonly more) and at least one member of a Committee must be a lay member.7

[73] To be eligible for appointment as a lawyer member of a Standards Committee, a person must have practised as a lawyer for a period or periods aggregating not less than five years.8

[74] In appointing any lawyer member of a Standards Committee, the NZLS Board must have regard, among other things, to:9

4 Paragraphs following to p 85, adopted from discussion on role of Standard Committee members in LCRO 34-2017

5 Lawyers and Conveyancers Act 2006,  s 126(2). 

6 Section 128(1).

7 Section 129(2).

8 Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, reg 15(1).

9 Regulation 15(2).

(b) the person’s ability by reason of his or her skill, experience, and judgement to deal with and make appropriate decisions in respect of complaints.

[75] Before the board may appoint a lay member to a Standards Committee, it must similarly be satisfied, that the person to be appointed is of good character, is a fit and proper person and has the skills, experience and judgement to equip them to make appropriate decisions in respect of complaints.10

[76] A Standards Committee must exercise and perform its duties, powers and functions in a way that is consistent with the rules of natural justice.11

[77] It is from that context that Ms QK’s accusation that several lawyers, and two lay members, charged with responsibility for conducting fair enquiry into the complaint before it, carried out their duties with a total disregard of their obligation to conduct a fair and impartial enquiry, must be measured.

[78] I do not suggest that the criteria required to be met to be considered for appointment as a member of a Standards Committee provides total immunity against the possibility of a lawyer being appointed to a Committee who lacks the requisite personal and professional attributes required for the position, but the requirement for lawyers to be appointed with both the necessary level of experience and demonstrable personal characteristics to equip them for a quasi-judicial position, would seem to provide a robust bulwark against the possibility of the membership of an entire Committee being so manifestly unsuitable (as Ms QK argues them to be) for the job.

[79] It presents as approaching the inconceivable that a Committee comprised of experienced lawyers would be so abjectly dismissive and ignoring of its fundamental obligations, that its members would, in apparent unison, engage in the behaviours that Ms QK accuses them of.

[80] Committees will, from time to time, make errors. All bodies charged with the responsibility for determining disputes between parties can get things wrong.

[81] The fact that Committee members are chosen for their particular skills and experience and are individuals who are perceived to have the necessary personal characteristics required of a decision maker, does not cloak those Committee members with a shroud of infallibility. Inevitably on occasions, mistakes will be made. But Ms QK does not identify any errors, oversights or omissions on the part of the

10 Regulation 18(4).

11 Lawyers and Conveyancers Act, s 142(1).

Committee that would remotely substantiate or provide justification for the extremity of the comments she makes.


[82] It is one thing to attack the decision, but another to attack the decision makers. This is not to suggest that decision makers are immune from criticism, but that criticism should be directed towards the argument rather than the individual. Criticism that a decision-making body has exhibited bias, or lacked independence, constitutes reasonable grounds for a challenge, but if that argument is to be advanced, evidence must be provided to substantiate the seriousness of the allegations.

[83] It could be expected that a lawyer would exercise considerable caution before embarking on criticism which attacks the integrity of individual members of a Standards Committee. Before taking such a serious step, it would be expected that a lawyer would satisfy themselves that that there was a strong foundation for the criticisms being made.

[84] Mr EG submits that Ms QK’s advancement of allegations that the Committee had acted corruptly, in a discriminatory fashion, and in bad faith, was in itself conduct which merited a disciplinary response.

[85] Ms QK’s intemperate attacks on the members of the Committee discloses a troubling lack of insight on her part.

[86] Nor can her approach be explained or justified on grounds that she is providing a robust defence to criticisms made of her. A lawyer is entitled and indeed expected to vigorously advance their position when addressing disciplinary matters, but the entitlement to advance robust argument does not absolve a lawyer of obligation to ensure that the argument is advanced in a professional manner.

Were there procedural irregularities in the manner in which the Committee conducted its inquiry?


[87] Ms QK makes complaint that the Committee:
[88] Turning firstly to argument that Ms QK’s position was compromised by the Committee’s decision to issue a single decision, there is no evidence to support suggestion that the process by which the Committee issued its decisions resulted in any adverse consequences for Ms QK.

[89] Ms QK filed her first complaint against Mr JF.

[90] She then advised the Complaints Service, that she wished to amend her complaint to include Mr EG.

[91] Her decision to pursue a complaint against Mr EG was precipitated by her receiving correspondence from Mr EG following the lodgement of her complaint against Mr JF.

[92] Mr EG was the partner in the firm charged with the responsibility of responding to complaints.

[93] Ms QK advised the Complaints Service that she required her “further grounds of complaint to form part of my earlier complaint. The email is in respect of the same issue and I believe it further substantiates my complaint”.

[94] It is self-evident that Ms QK considered her complaint against Mr EG to be part and parcel of the complaint she was advancing against Mr JF, and that is how the Committee proceeded to deal with the closely related matters.

[95] The Complaints Service, on receiving what Ms QK had described as her addendum to her first complaint, nevertheless elected to open two separate complaint files.

[96] I can identify no procedural difficulties in the Committee electing to issue a single decision. Ms QK herself had clearly signalled that she considered her complaint against Mr EG to be intertwined with the complaint brought against Mr JF.

[97] It is not uncommon for a Standards Committee to issue its decision in respect to multiple complaints in a single decision in circumstances where there is common context to all of the complaints, a practice also followed by the Review Office on occasions.
[98] Nor was there anything procedurally amiss with the Committee’s decision to release the three decisions contemporaneously. The complaints arose out of the same conveyancing transaction. There was inevitably a considerable degree of overlap in the complaints.

[99] Ms QK does not explain precisely how the issuing of a single decision is said to have compromised her position. But the Committee’s decision to do so, is construed by her to be reflective of the “bold steps” she says were taken by the Committee to protect Mr JF. This is language which in essence alleges perversion of justice.

[100] In a pattern consistent with her approach throughout, Ms QK is prepared, without shred of evidence, to parlay her dissatisfaction with an entirely conventional and purely administrative process, into accusation that impugns the reputation of all of the Committee members.

[101] Ms QK is critical of the Committee’s decision to, as she describes it, withhold issuing its decisions until 14 December 2016, at which point it, in Ms QK’s words, “dumped all three decisions on me just before Christmas”.

[102] Ms QK describes the timing of the release of the decisions as “an abuse of power by the Committee”, and a “deliberate act by the Committee to safeguard [Mr EG] and put me in a disadvantaged position”.

[103] Ms QK is presumably suggesting the Committee was compromising her ability to have sufficient time to prepare applications to review the Committee’s decisions.

[104] Ms QK lodged her complaints with the Complaints Service on 8 August 2016.

[105] Her complaints were understandably, and quite appropriately, considered by the Committee at the same time as it was addressing the complaint made against Ms QK.

[106] Ms QK’s complaint against Mr JF was set down for hearing on 12 October 2016 and heard by the Committee on 2 November 2016.

[107] I see nothing untoward in the Committee delivering its decisions on 14 December 2016. The complaints had been dealt with in a time frame that indicated that both the Complaints Service and the Committee were conscientiously endeavouring to meet their obligation to progress the inquiry into the complaints expeditiously.
[108] It is not the case that decision making bodies delay the issuing of decisions in the month of December to ensure a party’s appellant rights are not compromised by the intervention of the Christmas holiday break.

[109] Inevitably legislation (as is the case with the Act) allows for any possible prejudice, by calculating time frames for mounting challenge to a decision issued by reference to working days.

[110] To suggest, as Ms QK does, that the Committee timed the release of its decision with deliberate purpose to inconvenience her, and to suggest that timing of the release of the decisions was an abuse of process, and a deliberate attempt by the members of the Committee to assist Mr EG, simply reinforces the extent to which Ms QK’s submissions frequently reflect a failure on her part to bring reflective and insightful judgement to the positions she is advancing.

[111] Ms QK argues that the Committee was required to release its determination of the EG complaint immediately on making a decision that there had been no unsatisfactory conduct on the part of Mr EG.

[112] She notes that at paragraph 1.3 of its decision, the Committee records that it had determined at an early stage of its consideration of the complaints, that there had been no unsatisfactory conduct on the part of Mr EG.

[113] She argues that the Committee withheld this decision in breach of their obligation to release the decision. In advancing that argument, she relies on s 139(1) of the Act.

[114] Section 139(1) provides that in any case where a Standards Committee decides to take no action, or no further action, on a complaint, the Standards Committee must forthwith give written notice of that decision to the complainant, and to the person to whom the complaint relates.

[115] I do not consider that the Committee’s decision to issue a single decision breached its obligations under s 139(1) of the Act.

[116] The Committee’s decision to issue a single determination inevitably resulted in a minor delay in it formally recording its decision to take no action in respect to the EG complaint, but there was no demonstrable prejudice to Ms QK.

[117] Nor was there any undue delay in the Committee delivering its decision.
[118] Ms QK filed her complaint on 8 August 2016. The Committee issued its decision on 14 December 2016. Considering the extensive volume of material the Committee was required to address, I consider that it faithfully met its obligation to deal with complaints in an expeditious fashion.

[119] Ms QK is critical of the Committee’s decision to determine her complaint against Mr EG without first taking steps to set the matter down for a hearing.

[120] Ms QK notes that the Committee had, at an early stage in its consideration of her complaint, concluded that there had been no unsatisfactory conduct on the part of Mr EG.

[121] She perceives this to be an indication of the Committee predetermining the complaint. She contends that the Committee process was flawed, and that it had:

picked parts of the Act that suited its purpose, combined certain provisions to indicate their extent of powers, and disregarded the parts of the provisions in relation to limitations that applies to them or obligations that they must comply with. Ultimately, the Committee has rewritten the law to support their behaviour.


[122] A Standards Committee must exercise and perform its duties, powers and functions in a way that is consistent with the rules of natural justice.12

[123] A Standards Committee, on receiving a complaint, may:

[124] A Standards Committee that receives a complaint must, as soon as practicable, advise the complainant and the person to whom the complaint relates of the procedure that the Standards Committee proposes to adopt under s 137(1).

[125] On 6 August 2016, Ms QK advised the Complaints Service that she wished for her complaint against Mr EG to be included with her complaint against Mr JF.

[126] Having been provided with a copy of Ms QK’s complaint, Mr EG responded to it on 6 September 2016.

[127] Ms QK provided a comprehensive response to Mr EG’s submission on 29 September 2016.

12 Lawyers and Conveyancers Act 2006, s 142.

[128] On 12 October 2016, the Complaints Service advised Ms QK of its intention to set Mr JF’s complaint down for hearing on 17 October 2016. Ms QK was advised that the Committee would not be setting the EG complaint down for hearing.

[129] Having considered the material before it, the Committee was able to determine whether it considered it necessary to progress the EG complaint to a hearing. There was no statutory direction that required it to allocate a hearing.

[130] On receiving a complaint, a Committee may exercise its discretion to take no further action on a complaint. That is what the Committee elected to do.

[131] It is understandable that the Committee adopted a different procedural pathway in dealing with the complaint against Mr EG.

[132] Mr EG had no involvement with the conveyancing transaction. His engagement with Ms QK was confined to three email exchanges, all of which were prompted by the complaints made against Mr JF.

[133] Ms QK provided an 11-page response to Mr EG’s submissions. It could not be said that she had not had availed herself of opportunity to provide comprehensive response.

[134] The Committee’s decision to deal with the EG complaint on the basis of the information before it, without need for a further hearing, does not indicate any procedural irregularity in the Committee’s process.

[135] As a further example of the Committee’s failure to conduct a fair inquiry, Ms QK complains that the Committee omitted to provide her with copies of additional submissions filed by Mr EG and Mr JF on 19 October 2016 and 27 October 2016 respectively.

[136] Whilst I consider that the Committee should have provided Ms QK with copies of those submissions, having carefully read them, I am not persuaded that any prejudice arose for Ms QK as a consequence of the Committee’s failure to do so.

[137] On receiving a complaint, a Standards Committee must provide particulars of the complaint to the person to whom the complaint or inquiry relates and invite that person to provide a written explanation.

[138] Beyond that, it is open to the Committee to direct what further information it may require.
[139] If a decision is made to set a matter down for a hearing, further opportunity is provided to the parties to make written submissions to the Committee.

[140] It is important that complaints be determined expeditiously.

[141] The process neither contemplates or allows for an ongoing “ping-pong” process where complainant and lawyer engage in an increasing and escalating series of responses.

[142] Mr EG’s response of 19 October 2016 (and I intend no disrespect to Mr EG) has little relevance to the issues identified in Ms QK’s initial complaint. In large part, his submissions clarify matters relating to the staffing and administration of his legal practice and reflect the extent to which the focus of the complaint has expanded well beyond the issues identified in Ms QK’s addendum to her initial complaint.

[143] Mr JF, as did Mr EG, makes complaint that Ms QK has introduced new complaints and allegations. To the limited extent that he seeks to clarify matters arising from Ms QK’s response to his submissions, Mr JF’s 27 October 2016 response raises nothing new and simply reinforces, in large part, his recollection of events.

[144] To the extent that Mr JF endeavours in his further submissions to provide a view on issues relating to verification of identity for LINZ purposes, and advances argument around issues of certainty of contractual terms, neither of those matters are of major significance in the determining of this review.

[145] The pivotal question is not whether Ms QK or Mr JF were correct in their views as to how documents should have been witnessed, the proper focus of the conduct inquiry, was on how Ms QK and Mr JF (and to a limited extent Mr EG) managed their disagreements.

[146] The failure to provide Ms QK with a copy of Mr JF’s submissions, did not compromise Ms QK’s position.

[147] In any event, any procedural irregularity, if there had been any of significance, is capable of cure by the review process.

Did Mr JF breach r 2.10 of the Rules by threatening to use the complaints or disciplinary process for an improper purpose?


[148] Rule 2.10 of the Rules directs that a lawyer must not use, or threaten to use, the complaints or disciplinary process for an improper purpose.
[149] In SC v JT, the Review Officer observed that conduct issues may arise if the threat to make accusation, or to utilise the complaints or disciplinary process, is perceived to be linked to an improper purpose.13

[150] “Improper” has been defined as incorrect, unsuitable or irregular, fraudulent or otherwise wrongful.14

[151] If a lawyer has concerns that a colleague is in breach of their professional obligations, then they must pause to consider whether it is their obligation to file a complaint. If the conduct about which they have concern is, in their view, unsatisfactory, they may elect to file a complaint. If the conduct approaches conduct at the more serious end of the scale and may amount to misconduct, they must file a confidential report.15

[152] Importantly, in proscribing the circumstances in which either rule may be breached by imposing requirement that the threat to make accusation or to lay complaint must be made for improper purpose, it necessarily follows that the rules are not at risk of being breached if it is determined that the threats were made for a proper purpose.

[153] There can be no impediment to a lawyer using or threatening to use the complaints process for a proper purpose.

[154] What constitutes a proper or improper purpose will be determined by an objective appraisal of the facts of each individual case.

[155] In my view an improper purpose in threatening to make a complaint will arise when, in making the threat, a lawyer makes a connection between the threat and an unrelated strategic advantage that the lawyer is trying to accomplish.

[156] It is also unreasonable, and unrealistic, to expect that a legitimate threat of a complaint will be entirely devoid of some motive. After all, the lawyer’s chief concern is the interest of his or her client. However, the threat to make complaint must not, on any objective analysis, give indication that the practitioner was using threat of complaint to achieve a strategic advantage with his or her client, or give indication that the complaint is being used as leverage in the underlying matter. It is the element of leverage which is a misuse of the complaints procedures and which makes a threat

13 SC v JT LCRO 382/2013 (30 June 2017), comments following to p.159 adopted.

14 Bryan A Garner Black’s Law Dictionary (9th ed, Thomson Reuters, St Paul, 2009) at 826.

15 Lawyers and Conveyancers Act (Conduct and Client Care) Rules 2008, rr 2.8 and 2.9.

improper. The hallmark of an improper purpose is the use of a complaint to secure an advantage, rather than to ensure compliance with professional standards.


[157] There can be circumstances when indication of intention to issue complaint could be regarded as indicative of a collegial approach, a practitioner putting a colleague on notice, but providing opportunity to remedy.

[158] Ms QK submits that she was presented with a stark ultimatum from Mr JF, to withdraw the invoice she had rendered, or face the prospect of a disciplinary complaint.

[159] She submits that the Committee, when considering her complaint, had failed to address all the instances where Mr JF had threatened to invoke the complaints process and had focused solely on one example.

[160] Ms QK says that she had provided extensive evidence which supported her account of events, in correspondence of 28 June 2016, 11 July 2016, and 2 August 2016. Against this she says, Mr JF provides no evidence whatsoever.

[161] The correspondence upon which Ms QK relies, and which she complains the Committee ignored, does not assist in establishing her position. That correspondence does no more than repeat allegations first made on 28 June 2016 that Mr JF had indicated that his client would give consideration to not proceeding with a complaint, if Ms QK was prepared to waive her fee.

[162] Ms QK’s repetition of her recollection of what was said in her conversation with Mr JF does not conclusively establish what was said in that conversation. She is not providing additional evidence when she repeats her account.

[163] Mr JF says that his first direct involvement with Ms QK occurred on the afternoon of 24 June 2016, when he phoned Ms QK. He says that he had been asked to intervene, as the lawyer from his office who was managing the file was having difficulties.

[164] Before speaking with Ms QK, Mr JF says he spoke to his client. He says his client was distressed and angry about the position she had been left in following Ms QK’s decision to terminate the retainer. He says that the possibility of making complaint against Ms QK was discussed with his client on the day instructions were received.
[165] It was Mr JF’s view that Ms QK had not managed the conveyancing transaction as well she could have. He considered that Ms QK’s decision to terminate the retainer was “fraught with risk”.

[166] He considered that there was a high probability that Ms K would wish to pursue a complaint against Ms QK and in what he says was a spirit of collegiality, attempted to discuss with Ms QK an outcome which may dissuade his client from pursuing a possible complaint. Mr JF concedes that he encouraged Ms QK to consider cancelling her invoice in an effort to avoid the prospect of Ms QK having to deal with a complaint. He describes his approach as “an act of professional kindness on my part”.

[167] The discussion concerning the issue of possible waiver of Ms QK’s fee took place over the phone.

[168] I have no evidence before me of what was said other than the differing accounts of the parties.

[169] It is however unquestionably the case that Mr JF made the suggestion that his client would reconsider the possibility of advancing a complaint, if Ms QK agreed to cancel her fee.

[170] But precisely how that position was presented, and how it was responded to, is uncertain.

[171] A lawyer who presents a stark ultimatum to a colleague that a professional complaint will be advanced if the lawyer refuses to cancel an invoice rendered, presents at serious risk of breaching r 2.10.

[172] It is difficult to see a demand framed in those terms as anything but an attempt to use the threat of complaint to achieve a collateral advantage.

[173] But Mr JF does not recall the conversation been couched in such stark terms. He portrays the situation as being one where he was adopting a collegial approach and genuinely attempting to resolve a dispute which had potential to escalate.

[174] He says that his client was intending to make a complaint, but he considered that both his clients and Ms QK’s interests would be better served if the matter could be resolved without the need for a disciplinary intervention. He rejects suggestion that his discussions had any element of improper demand being made of Ms QK.

[175] I am unable to determine on the evidence before me, whether Mr JF advanced suggestion of Ms QK cancelling her fee in a manner which was collegial and with

purpose to resolve a possible dispute, or whether his request was couched in the language of demand is described by Ms QK.


[176] The burden falls on Ms QK to establish her complaint to the required standard of proof. She has not done so.

[177] I am not persuaded that Mr JF threatened to use the complaints or disciplinary process for an improper purpose.

Did Mr JF engage in deceptive and misleading conduct by making demand of Ms QK to release funds to his firm’s trust account immediately and by way of same day cleared payment?


[178] No.

[179] A careful examination of the evidence and, in particular, the timeline of the conveyancing transaction, gives no indication of Mr JF having engaged in dishonest or deceptive conduct.

[180] The foundation for such allegation is Ms QK’s accusation that Mr JF misled her when he advised her on 27 June 2016, that funds were required immediately to effect settlement.

[181] At that time, Mr JF says that it was anticipated that the matter would settle on 28 June 2016. The purchaser was not able to settle on that date. Settlement was finalised on 29 June 2016.

[182] I accept Mr JF’s evidence, but irrespective of that, I would have seen nothing untoward in his firm making demand of Ms QK to promptly transfer funds held by her. Settlement was imminent.

[183] Argument, or at best disagreement over bank charges (inconsequential in the grand scheme) and dispute over same day clearance practices present as quibbles not complaints, and certainly not matters that are deserving of disciplinary attention.

Did Mr JF provide misleading and deceptive advice regarding the law in regard to a stay of proceedings for recovery of costs?


[184] No.
[185] The genesis of this complaint is argument that Mr JF had engaged in misleading and deceptive behaviour by writing to Ms QK on 2 August 2016, informing her that:

pursuant to [s 161(1) of the Act] a stay of proceedings is given in respect of any invoices once notification of a complaint is given to a practitioner by the Complaints Service. Pending notification of the complaint I assume that no enforcement action will be taken to recover the invoice.


[186] Ms QK complains that Mr JF was misleading and deceptive, as s 161(1) of the Act provides that a practitioner may take no steps for recovery of a bill, if the practitioner has received notice from a Standards Committee that it has received a complaint.

[187] Ms QK was correct to identify that Mr JF was incorrect when he submitted that a stay of proceedings operated upon a practitioner receiving notice of a complaint from the Complaints Service. Ms QK observes that it is a Standards Committee who issues notices under s 161(1) of the Act.

[188] Mr JF’s mistake is not one which is appropriately elevated to the level of a disciplinary offence. I can see no reasonable basis for characterising an error of this nature as constituting misleading or deceptive conduct.

[189] As noted in CW v XB, an honest mistake does not provide a proper basis for a disciplinary response.16

[190] Mr JF was doing no more than alerting Ms QK to an issue that is not uncommonly overlooked by practitioners, being the need to exercise caution before taking steps to recover an outstanding account, in circumstances where a complaint has been filed.

Did Mr JF offend against the Rules and cause distress and damage to Ms QK’s by criticising the manner in which Ms QK had managed aspects of the conveyancing transaction to his client?


[191] No.

[192] Mr JF considered that there were aspects of the conveyancing transaction that could have been better managed by Ms QK. He discussed his concerns with his client.

[193] Ms QK took exception to the criticisms made.

16 CW v XB LCRO 213/2010 (15 June 2011).

[194] She considered that she had competently and diligently managed Ms K’s sale. She was deeply offended by suggestion she had not.

[195] At the nub of the disagreement was a difference of view as to whether Ms QK had adopted an excessively cautious approach when insisting that her client have documents witnessed by a notary public.

[196] Ms QK provides a comprehensive explanation as to why she considered her approach was the correct one. Mr JF provides equally comprehensive response setting out why he considered his approach to be the right one.

[197] These differences of opinion on an issue of conveyancing practice, escalated to the point where both practitioners felt it necessary to provide account of their competency and experience.

[198] Much is made for Mr JF of his years of experience and the extent of the conveyancing experience consolidated within his firm.

[199] Ms QK provides an account of her legal background and experience.

[200] Both lawyers were entitled to reference their experience as the inquiry into the complaints progressed, but in doing so the criticisms became more expansive then they needed to be.

[201] Mr JF, in reporting that he had been deeply offended by Ms QK’s complaints, goes so far as to suggest that he questioned whether Ms QK should be permitted to continue to provide conveyancing services as a sole practitioner.

[202] Ms QK concludes that she is the victim of what could be described as old boys’ network, where seniority and experience is accorded a status and privilege that is denied to her.

[203] Mr JF was entitled to express an opinion to his client. It is by no means uncommon for a lawyer who takes over the file from another practitioner, to reach a view that the file could have been managed differently, or better. Ms QK was entitled to defend the criticisms made of her management of the conveyancing transaction and quite properly did so.

[204] Lawyers will inevitably, on occasions, disagree. Arguments will be robustly advanced and positions robustly defended.

[205] Ms QK argues that the criticisms made were damaging of her reputation.
[206] She overstates the case.

[207] The severest criticisms made of Ms QK, were advanced by the lawyers in the process of responding to the complaints.

[208] Ms QK takes objection to the manner in which Mr JF communicated with her, describing aspects of those communications as demanding and insistent.

[209] I see no evidence of Mr JF engaging with Ms QK in a discourteous way.

[210] Making request of Ms QK to attend to requests urgently in circumstances where settlement was imminent is not reflective of a discourteous or unprofessional approach, but rather typical of the tone and content of language employed by lawyers in circumstances where the settlement of a conveyancing transaction is imminent, and the lawyer’s attention is focused on ensuring that all necessary requirements to finalise settlement have been attended to.

Was Mr EG deceptive and misleading in his dealings with Ms QK?


[211] A number of the issues raised by Ms QK relevant to her complaints about Mr EG, identify procedural matters relating to the management of her complaint. Those issues have been addressed earlier in this decision.

[212] Her initial complaint against Mr EG was that he had made false assertions about her in an email forwarded to her on 8 August 2016, and that he had been deceptive and misleading in his dealings with her.

[213] Mr EG’s involvement with Ms QK was brief.

[214] He was the partner in the firm charged with responding to complaints.

[215] His engagement with Ms QK was limited to an exchange of three emails (two from Mr EG to Ms QK), the first forwarded to Ms QK on 4 August 2016, the second on 8 August 2016.

[216] Mr EG’s correspondence of 4 August 2016 simply informs Ms QK that her complaint against Mr JF had been referred to him. He advises Ms QK of his intention to provide a substantive response to the complaint.

[217] That correspondence was entirely non-contentious. No objection could be taken to it.
[218] I have carefully considered Mr EG’s email of 8 August 2016. That email must properly be considered in the context of the circumstances in which it was written, being that Mr EG was responding to complaints levelled against Mr JF.

[219] Much of the content of Mr EG’s email of 8 May 2016 is simply indicative of Mr EG providing explanation to Ms QK of the purpose of his correspondence. This from a background where Ms QK had indicated that she was uncertain as to why Mr EG had initially corresponded with her.

[220] Mr EG then refers to the proceedings that he says Ms QK had threatened to seek recovery of her fee.

[221] Ms QK describes Mr EG’s account of her threatening to issue proceedings as “a lie”. She contends that she had never made a threat to issue proceedings.

[222] In her correspondence to the firm of 2 August 2016, Ms QK says the following:

You have maintained your approach and failed to respond to our letter of 11 July 2016. Your failure to respond would affect your client as her account remains outstanding. We will extend the time for payment of our invoice, in good faith, until close of business Friday, 5 August 2016. If the account remains unpaid, we will charge interest of 12 [per cent] per annum as set out in our terms of engagement provided to [Ms K], and we may take further steps to recover the amount outstanding.


[223] She is correct when she contends that she had not issued a threat to issue proceedings. She had simply given indication of possibility that she may choose to do so.

[224] But I do not consider that Mr EG “lied” when he stated in his correspondence of 8 August 2016, that one of the reasons he had written to Ms QK, was to address the proceedings she had threatened to issue.

[225] Mr EG’s choice of words could have been more precise, but it is placing an untenable construction on Mr EG’s account for Ms QK to suggest that Mr EG was being deliberately dishonest or engaging in deceptive behaviour in describing her indication of possibility of issuing proceedings as a threat to issue proceedings.

[226] In her correspondence of 2 August 2016, Ms QK was giving clear indication of the possibility of proceedings being filed to recover her fee.

[227] Mr EG in his response 8 August 2016, was putting Ms QK on notice that a complaint had been made by Ms K, and emphasising that no steps should be taken by her to recover the outstanding fee, until the complaint had been resolved.
[228] Ms QK submits that the Committee’s acceptance of Mr EG’s contention that she had threatened to issue proceedings, was but further example of the Committee acting in a corrupt and discriminatory manner.

[229] As I have noted, Mr EG could have expressed the position more clearly in his correspondence, but his description of Ms QK making threat to issue proceedings as opposed to more accurately describing the position as being one where she had signalled the possibility of issuing proceedings is not an error, considered in context, which remotely provides foundation for complaint that Mr EG had been deliberately misleading.

[230] Ms QK was clearly intending to signal the possibility of filing proceedings, and in responding on his client’s behalf, it was Mr EG’s intention to caution Ms QK of the consequences for a practitioner of endeavouring to take steps to recover a fee when a complaint about the fee was unresolved.

[231] Having concluded that the Committee had agreed with Mr EG that she had threatened to issue proceedings, Ms QK argues that this finding established a raft of precedents that undermined the complaints process, including the setting of a precedent which allowed and encouraged practitioners to discriminate against their colleagues on the basis of age and ethnic background. This is further example of Ms QK’s propensity to draw extreme conclusions from facts that do not remotely support the conclusions argued for.

[232] The Committee did not confirm that it had concluded that Ms QK had threatened to issue proceedings.

[233] To the extent that it addresses the complaints made against Mr EG, it provides little explanation for its decision to take no action against Mr EG, other than to note that it considered there was nothing in the voluminous paperwork provided to suggest that Mr EG had overstepped the mark.

Publication


[234] Pursuant to s 206(4) of the Act I direct that this decision be published so as to be accessible to the wider profession in a form anonymising the parties and bereft of anything as might lead to their identification.

Decision

Pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006 the decision of the Standards Committee is confirmed.

DATED this 29TH day of May 2019


R Maidment

Legal Complaints Review Officer

In accordance with s 213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:

Ms QK as the Applicant

Messrs JF and EG as the Respondents [Area] Standards Committee

New Zealand Law Society

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