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AH v OS [2018] NZLCRO 133 (21 December 2018)

Last Updated: 18 January 2019


LCRO 168/2017

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 [x]

BETWEEN
AH

Applicant

AND
OS and VI

Respondents

DECISION

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


Introduction


[1] Mr AH has applied for a review of a decision by the [Area] Standards Committee

[X] (the Committee) to take no further action in respect of his complaint concerning the conduct of the respondents, Mr OS, at the relevant time a lawyer employed under the title of consultant by [JK Lawyers], [Town B] (the firm), and Mr VI, the firm’s general manager.


[2] Mr OS acted for Mrs C AH (Mrs C) who by November 2016 was in her 90’s and lived at [Sunny Retirement Village, Town A] (Sunny). Mrs C and her husband LG, whom she survived, had three children, Mr AH, Mrs P HR (Mrs HR) and Mr T AH (Mr T).

[3] A family company, [ABC] Ltd (the company) owned a rural property of which approximately 25 hectares remained. Equal numbers of shares in the company were held by Mr AH, Mrs HR, and Mr T. A house site on a separate title had previously been gifted to Mr T who also lived on the farm on another site.
[4] In March 2011, Mr OS prepared a second codicil to Mrs C’s will in which Mrs C stated that there was “no legal or moral basis for ... an adjustment” to the shareholding in the company in favour of Mr AH.

[5] On 3 November 2016, Mrs HR and Mr AH telephoned Mr OS. They say Mrs C had asked them to arrange for Mr OS to contact her. Mr OS says they put a “proposal” to him about a change to Mrs C’s will to address “historical imbalance” by the transfer of the house title to Mr T which occurred when Mr AH “was tied to the farm”.

[6] Mr OS decided that instead of first speaking to, or seeing Mrs C he would prepare for her consideration a draft will incorporating Mrs HR’s and Mr AH’s “proposal”. On 8 November he had a draft will, which included provision for Mrs C’s bank deposits to be divided between Mr AH and Mrs HR, and his covering letter, delivered to Mrs C at [Sunny]. The same day he sent the draft will and covering letter by email to Mrs HR together with a copy of his handwritten notes of the 3 November telephone conversation.

[7] The following day, 9 November, Mr AH visited Mrs C at [Sunny]. He told her he and Mrs HR had not asked Mr OS to prepare the draft will. Mrs HR telephoned Mr OS that day or the following day with the same message.

[8] Mr T telephoned Mr OS on 21 March 2017, after having seen the draft will and Mr OS’s accompanying 8 November 2016 letter to Mrs C when visiting Mrs C at [Sunny].

[9] A week later on 27 March 2017, Mr OS wrote to Mrs C. He referred to his telephone conversation with Mr T and confirmed that a new property enduring power of attorney in favour of two partners in the firm was in place. He informed Mrs C that Mrs HR was [Mr C’s] personal care and welfare attorney, and that Mr AH, Mrs HR and Mr T were named as executors in her will.

[10] He stated that if her “confidence” in Mrs HR, who was signatory on Mrs C’s bank account, to “do the right thing” was “reduced” then she could substitute Mr T, who could also replace Mrs HR as Mrs C’s personal care and welfare attorney. He suggested that Mrs C might also wish to consider independent executors of her will.

[11] On 4 May 2017 Mr T accused Mrs HR, amongst other things, of attempting “to write him out” of Mrs C’s will which, he stated, had cost him “substantial legal fees to fight”.

[12] Mr OS informed Mrs HR on 26 May 2017 that Mrs C had appointed Mr T as personal care and welfare attorney in place of Mrs HR.

Complaint


[13] Mr AH lodged a complaint with the New Zealand Law Society Complaints Service (NZLS) on 6 July 2017. In essence, his complaint was that he and Mrs HR did not, as Mr OS contends, instruct [Mr OS] to prepare a new will for Mrs C.

[14] He sought:

[15] He stated because the firm had favoured Mr T, it would not be possible for the firm to act on the administration of Mrs C’s estate, or accept appointment as executors and trustees.

Mrs C’s will


[16] Mr AH claimed that Mrs C, without saying “why”, told him she “wanted to see” the lawyer who “handled her will”, and requested Mr AH to ask that lawyer to contact her. He stated that on 3 November 2016, he and Mrs HR telephoned Mr OS to make that request.

[17] He stated Mr OS had not had “contact” with Mrs C since 2011 when he prepared the second codicil to Mrs C’s will. He said because Mr OS did not remember Mrs C he had retrieved her file and proceeded to ask questions “to refresh his memory”.

[18] He said on 8 November 2016, Mr OS forwarded to Mrs HR by email:
[19] Mr AH claimed without discussion within the family, Mr OS drafted a will that “cut out” Mr T. He said instead of visiting Mrs C at [Sunny], Mr OS had the draft will and the covering letter delivered to Mrs C there.

[20] He questioned how Mr OS “would take instructions over the phone from two beneficiaries”, one of whom “[Mr OS] couldn’t recall meeting 5 years ago”, the “other [Mr OS] had never met”. He said he could not “understand where Mr OS sourced [Mr OS’s] instructions” which were incorporated in the draft will.1

[21] He said Mr OS “scrapped the draft will and all changes” when “challenged” by Mrs HR that she and Mr AH “did not instruct” Mr OS.

[22] Mr AH claimed that these events lead to:

Mr OS’s letter to Mrs C


[23] He stated that “a growing list of people including Mrs HR, Mr AH and Mr T, were “affect[ed]” by “Mr OS’s 8 November 2016 covering letter to Mrs C which suggested a breach of confidence by Mr OS.

Complaint to the firm


[24] Mr AH said that in response to his complaint to the firm, Mr VI informed him that Mr KP, a partner in the firm, after carefully reviewing the file and consulting with Mrs C, had formed the view that “matters have been addressed appropriately and in line with [Mrs C’s] wishes”.

1 Draft will clause 8 (a): Mr AH’s 20 year investment in the family farming operation "when it was marginally profitable"; clause 8 (b) Mr T having been given the house site in the bush block; clause 8 (d) instead of transferring her shares in the company it would have been preferable to have favoured Mr AH and Mrs HR to compensate them for the house site having been given to Mr T.

Response


[25] Although invited to do so by the Lawyers Complaints Service, Mr OS chose not to respond to Mr AH’s complaint.

Standards Committee decision


[26] The Committee delivered its decision on 25 July 2017, and determined, pursuant to s 138(2) of the Lawyers and Conveyancers Act 2006 (the Act) that no further action on the complaint was necessary or appropriate. The Committee did not address Mr AH’s allegation of a breach of confidence by Mr OS.

(1) Mr OS Professional duties
[27] The Committee concluded that “subject to any overriding duties to the court, a lawyer’s duty is to his or her client not to a third party such as Mr AH”. Because Mrs C was the firm’s client to whom Mr OS owed professional duties, her information held by the firm was “privileged and confidential” to Mrs C.

Complaint


[28] In the Committee’s view, without Mrs C’s instructions, Mr OS could neither respond to Mr AH’s complaint, nor “be compelled to review the advice given or the instructions received in relation to [Mrs] C”.

(2) Mr VI

[29] The Committee decided that Mr AH “[s]imply disagreeing” with Mr VI “is not evidence that [Mr OS] ... is somehow derelict in his ... duties”. In particular, the fact that Mr VI “rejected” Mr AH’s complaint “is not capable of sustaining a finding that Mr VI or the firm had breached a professional obligation”.

[30] The Committee noted that whilst Mr VI acknowledged that Mr OS’s letter to Mrs C “was not as well worded as it could have been”, in his response to Mr AH’s complaint, Mr VI stated he was “satisfied that the appropriate action for ... [Mrs] C ha[d] been completed by the firm”, and was “convinced and happy with how [Mr OS] acted on behalf of ... [Mrs] C”.

Application for review


[31] Mr AH filed an application for review on 4 September 2017. He seeks a written retraction from the firm, costs, and damages. He challenges “the professional integrity of [the firm] to handle [Mrs] C’s affairs”.

Mrs C’s will, email to Mrs HR


[32] Mr AH states that the Committee misunderstood his complaint which was that Mr OS had incorrectly stated in his 8 November 2016 letter to Mrs C that [Mr OS] had prepared the draft will on Mr AH’s and Mrs HR’s instructions.

[33] He repeats that he did not provide instructions to Mr OS to prepare a will for Mrs

C. He says Mrs C “asked” Mr AH to “contact” Mr OS “to arrange a meeting” with Mrs C.


[34] He claims Mr OS “ignored [his] duty” to Mrs C “by questioning him and Mrs HR about [Mrs C’s] affairs, altering [Mrs C’s] will without consulting her or even ascertaining if she wanted [her will] altered”.

[35] Contrary to the Committee’s statement that he “expressed an interest in [Mrs] C’s affairs and in particular her will”, he says Mrs C “did not tell him why she “wanted to see” Mr OS. He says “for all” he knew Mrs C’s request “may not have related to her will”.

Mr OS’s letter to Mrs C


[36] Mr AH says “unrequested” by Mrs HR, Mr OS sent her copies of the draft will, his covering letter, and his notes of the 3 November 2016 telephone conversation. He says he cannot explain why Mr OS did that because Mrs HR had “only requested a copy of his notes”.

[37] He says on 9 November 2016, he read Mr OS’s letter and the draft will “in [Mrs C’s] room and discussed” them “with her”. He says he told Mrs C it was not true he and Mrs HR “instructed Mr OS to write the draft will”. He says he recommended to Mrs C that she “scrap” the draft will.

[38] He claims Mr OS “breached client confidentiality and privilege by discussing it with others as well”.

Complaint to the firm


[39] He disagrees with the Committee’s statement that he had attempted to come between lawyer and client. He says Mr OS owed him no professional duty other than the “honesty and transparency expected of any reasonable person”.

[40] He says had the firm, “months ago to all involved”, expressed the sentiments Mr VI did to him in their (recorded) 7 June 2017 telephone conversation, then that “could have ended the matter” thereby avoiding the rift in the family and legal costs of $1,000 he says were billed by the firm to Mrs C.

Response


[41] In response, Mr OS says that on 3 November 2016 he received a telephone call from Mrs HR, with Mr AH present with her, which lasted one hour.

[42] He says he “made handwritten notes throughout” that telephone conversation. He says he “understood there had been a family discussion, and that a quite different approach” to Mrs C’s will had been “agreed”.

[43] He says [Sunny], where Mrs C resided, is a drive of 40 minutes by car from [Town B]. Instead of seeing her there to take her instructions, and then visit her again, he says he decided to prepare a draft will from “what [he] understood [Mrs HR’s] and [Mr AH’s] proposal to be ... post it to [Mrs] C and subsequently review it with her”.

[44] Mr OS says, “in good faith”, he prepared the draft will which was “always subject to review with [Mrs] C who was [the firm’s] client and whose views were the only ones which really counted”. He says, if Mrs C “agreed with [Mrs HR’s] and [Mr AH’s] proposal the Will could have been signed in one trip”.

[45] He denies he had “gone off on a tangent and fomented discord in the family” into which he says he “inadvertently stumbled”. He says he views this complaint as a “tactical skirmish in a wider family battle”.

[46] Mr OS concludes by stating that Mrs C “had never altered her position” regarding her will. He says it was Mrs HR and Mr AH “seeking in the first place to have [Mrs] C’s Will altered”. He says he had not billed his attendances because the matter did not proceed.

Hearing in person


[47] This review was progressed by way of a hearing in Auckland on 14 December 2018 attended by both parties, Mr AH in person, and Mr OS on the telephone for a large part of the hearing.

Nature and scope of review


[48] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:2

... 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.


[49] More recently, the High Court has described a review by this Office in the following way:3

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.


[50] 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 consider all of the available material afresh, including the Committee’s decision, and provide an independent opinion based on those materials.

Issues


[51] The issues I have identified for consideration on this review are:

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

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

Preparation of Mrs C’s will


(a) What did Mr AH and Mrs HR ask Mr OS to do when they spoke to him on 3 November 2016?

Duty of confidence


(b) Did Mr OS breach Mrs C’s confidence by forwarding to Mrs HR the draft will, and covering letter to Mrs C?

Complaint to the firm


(c) What were the firm’s professional obligations to Mr AH upon receipt of his complaint about Mr OS’s conduct, and did Mr VI discharge them?

Analysis


(1) 3 November 2016 telephone conversation — issue (a)

(a) Professional obligations and duties

[52] Lawyers’ duties are “governed by the scope of their retainer”. This includes “[m]atters which fairly and reasonably arise in the course of carrying out those instructions [which] must be regarded as coming within the scope of the retainer”.4

[53] A lawyer risks a complaint from a client with a prospect of a disciplinary response if the lawyer does not, subject to limited exceptions, carry out the client’s instructions.5 If the lawyer is unsure about the client’s instructions then “it is incumbent on the lawyer to obtain clarification of those instructions. The lawyer may not proceed on an assumption the client agrees to a certain course of action”.6

[54] A lawyer must respond to a client’s inquiries in a timely manner, disclose to his or her client information that is relevant to the retainer, take reasonable steps to ensure that the client understands the nature of the retainer, and keep the client informed about progress. The lawyer concerned must also consult the client about steps to be taken to implement the client’s instructions.7

4 Gilbert v Shanahan [1998] 3 NZLR 528 (CA), per Tipping J at 537.

5 Duncan Webb, Kathryn Dalziel and Kerry Cook Ethics, Professional Responsibility and the Lawyer (3rd ed, LexisNexis, Wellington, 2016) at [10.3].

6 At [10.3] — see r 1.6 as to the manner in which a lawyer must provide information to a client — see discussion in Sandy v Kahn LCRO 181/2009 (25 December 2009) at [38].

7 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care Rules 2008, rr 7, 7.1; r 1.2

— a “retainer” is defined as “an agreement under which a lawyer undertakes to provide or does provide legal services to a client”.

(b) Parties’ positions Mr AH
[55] Mr AH says that his primary concern with Mr OS was that after Mrs HR had told Mr OS on 9 or 10 November 2016 that Mrs C did not wish to proceed with the draft will, Mr OS did not tell Mr T that Mr AH and Mrs HR did not put forward that proposal in the first place.8

[56] He says had Mr OS told Mr T that then, the subsequent unpleasantness with Mr T could have been avoided.

[57] Mr AH denies he “instructed” Mr OS to draft a new will for Mrs C. He says there had been no family discussion about a new will. He says he presumed Mrs C wanted to see Mr OS about her will, but doubts Mrs C was minded to divide her bank deposits between Mr AH and Mrs HR to “address historical differences”. He says if that was so it would be more likely that Mrs C would have left her bank deposits to him.

[58] He acknowledges Mr OS asked questions about the family background, but says he did not know why. He claims Mr OS did not raise Mrs C’s enduring power of attorney with him.

Mr OS


[59] Mr OS presents a different perspective. At the hearing he said his handwritten notes of the 3 November 2016 telephone conversation were “verbatim”.

[60] He says he “understood” the terms of Mrs C’s proposed will had resulted from “a family discussion” where “a quite different approach” to Mrs C’s will had been agreed. He says Mrs HR’s and Mr AH’s “clear message” was “a change of will”, and he “understood” that following a family conference they “put forward a will proposal”.

[61] He says during the 3 November 2016 telephone conversation Mrs HR had requested copies of his notes of that conversation, the draft will and his reporting letter to Mrs C.

[62] He says following that telephone conversation, rather than make the 40 minute drive from [Town B] to [Town A] to see Mrs C, he decided to prepare a draft will incorporating Mrs HR’s and Mr AH’s “proposal”, “post it” to Mrs C, and then “review it” with her.

8 As noted in the introduction, Mr T appears to have come across the draft will when visiting Mrs C at [Sunny] during March 2017.

[63] He says he prepared the draft will “in good faith” subject to Mrs C’s approval. He says when he subsequently visited Mrs C at [Sunny] she told him she did not agree with the “proposal”. He says as matters turned out, it was not Mrs C who sought to change her will, but Mrs HR and Mr AH.

[64] Mr OS’s three pages of notes of the 3 November 2016 telephone conversation are consistent both with a reasonably lengthy conversation having taken place during which Mr OS asked questions of Mrs HR and Mr AH concerning details of family matters not at his fingertips. The parties agree that the conversation lasted for at least half an hour.

[65] Mr OS noted that Mrs C was “making change [to] her will”, and her “cash in bank” was to be “split” between Mr AH and Mrs HR. He noted that the “suggested will” be sent to the firm’s [Town A] office on Monday 7, or Tuesday 8 November the following week, and he would visit Mrs C a week later. He noted Mrs HR’s email address to send her his “notes”, “letter”, and “suggested will”. He referred to a “new property” enduring power of attorney.

[66] Mr OS recorded a number of background details. These included Mrs C being “in serviced care in [Sunny]” and had “capacity”; her husband LG had died; a “bush block (millable trees)” had been “divided” but “was unfair”; the “dwelling and curtilage part of the bush block” had been transferred to Mr T which “gave him independence [to] get on with life” whereas Mr AH was “not so fortunate”; “[ABC]”, the company, “now belongs evenly” to Mr AH, Mr T and Mrs HR; Mr T’ preference was to “buy out” Mr AH and Mrs HR “and take [Mr T’ and his wife’s] own path”; Mrs C “split her shares to value equally – should have been 2/3 to 3 of us”, namely, Mr AH, Mr T and Mrs HR.

[67] Mr OS states following “standard practice” he “needed to know what [Mrs C’s] assets were” to gauge whether “the will would be vulnerable”. Although Mr AH concedes Mr OS asked questions about the family to which Mrs HR responded, [Mr AH] does not agree with everything in Mr OS's notes.

[68] Consistent with his notes, Mr OS’s 8 November 2016 covering letter to Mrs C informed her that on 3 November 2016 Mrs HR and Mr AH telephoned him “to say there had been discussions between family members”, and that Mrs C had “decided to change [her] Will to reverse the position” in her “Codicil of 8 November 2011” which he also enclosed.
[69] Mr OS told Mrs C that he “understood” from Mrs HR that Mrs C wanted “to leave [her] deposit funds with the bank (... now less than $200,000)” to Mr AH and Mrs HR “to even up an historic imbalance when [Mr] T was advantaged in receiving free land to build his house and because [Mr AH] was tied to the farm and restricted in making his way elsewhere”.

[70] Mr OS explained that he had “received these instructions from...beneficiaries of the change”. He advised Mrs C he acted for her and “not [her] family when it comes to making [her] will”, and that “a significant change [was] proposed”. He said he intended visiting her at [Sunny] during the week beginning 14 November “to clarify [her] wishes”, and if she “agree[d], complete a new Will”.

[71] He stated that he understood from Mrs C’s “family” that she was “over ninety but that [her] mind [was] still sharp”. He recommended that if she did make a new will, then to avoid any “later dispute” that her doctor “record in writing that [Mrs C’s] capacity to make a Will [was] not impaired”. He suggested that “helpful comment on what is proposed” be obtained from the former family accountant.

[72] In conclusion, he suggested to Mrs C she consider appointing “independent professional executors” if there might be “a serious risk of discord” among Mr AH, Mr T and Mrs HR which could lead to “dysfunction in [Mrs C’s] estate administration”. He said he would discuss with Mrs C whether she wanted to appoint a new property attorney when he met with her.

[73] In summary, the parties hold different views as to the intended outcome of the 3 November 2016 telephone conversation despite Mr OS’s notes of that conversation.

[74] Mr AH refers to Mr VI’s concession to him seven months later in their 7 June 2017 telephone conversation, namely, that Mr OS’s description, in his 8 November 2016 letter to Mrs C of [Mr AH’s] and Mrs HR’s will “instructions”, was “unfortunate”. However, at the hearing, Mr OS remained firm to his position that Mrs HR and Mr AH “did put forward a will proposal” to him.

[75] Mr AH says he and Mrs HR asked Mr OS to visit Mrs C, they presumed, about Mrs C’s will. Mr OS says following a family meeting they informed him of Mrs C’s proposed will changes, and asked him to obtain Mrs C’s confirmation and instructions.

[76] In my view, for the purpose of asking Mrs C whether Mr AH’s and Mrs HR’s “proposal” represented Mrs C’s will instructions, it would have been preferable for Mr OS to have either telephoned Mrs C, or as Mr AH suggested at the hearing, visit, or have one of his partners from the firm’s [Town A] office call on Mrs C. Had he done so,

assuming Mrs C instructed him she did not want to change her will, then the events that followed preparation of the draft will could have been avoided.


[77] However, because Mr OS chose to obtain Mrs C’s instructions by preparing and sending to her a draft will incorporating what he understood from Mr AH and Mrs HR, Mrs C had requested, it does not necessarily follow that Mr OS breached or contravened his professional duty by obtaining Mrs C's instructions this way.

[78] Decision making bodies are frequently presented with conflicting versions of events, and little other evidence to assist them as to what version is to be preferred. In such circumstances, the decision maker has little option but to conclude that it is not possible to make a definitive finding.

[79] In conclusion on this issue, I am not persuaded that Mr OS proceeded without direction from his client, Mrs C. I am satisfied that in accordance with his professional duties, Mr OS informed Mrs C that he had been approached by Mrs HR and Mr AH, and sought Mrs C’s instructions in respect of what he understood Mrs HR and Mr AH had put to him.

[80] Overall, I do not consider that these events give rise to any adverse professional issues for Mr OS.

(2) Mr OS’s disclosure to Mrs HR

(a) Duty of confidence

[81] The fundamental obligations of lawyers include the obligation “to act in accordance with all fiduciary duties and duties of care owed to clients”, and “to protect ... the interests of clients”.9

[82] Consistent with that obligation r 8 imposes a duty on lawyers “to protect and to hold in strict confidence all information concerning” first, “the client” to whom the duty is owed, secondly, “the retainer”, and thirdly, “the client’s business and affairs acquired in the course of a professional relationship” as provided in the rule.10

9 Lawyers and Conveyancers Act, s 4(c), (d).

10 The exceptions to the rule, namely circumstances where the disclosure of information protected by the duty is both required (r 8.2) and permitted (r 8.3) are discussed below. Footnote 10 notes that even though information which a lawyer acquires about his or her client, while acting for the client, is in the public domain, such information “will nevertheless be confidential information”.

[83] The duty of confidence “commences from the time a person makes a disclosure to the lawyer in relation to a proposed retainer (whether or not a retainer eventuates)”.11

[84] A “disclosure” by a person to a lawyer in respect of “a proposed retainer” between them concerns “all information concerning [the person] ... and the [person’s] business and affairs” provided to or imparted to the lawyer by the person (r 8). The word “disclosure” is qualified by the words “in relation to a proposed retainer (whether or not a retainer eventuates)”.

[85] Illustrations of findings that the lawyer concerned contravened the rule include a lawyer who had acted for a client in that capacity and later as an immigration consultant had made allegations about the complainant to a third party;12 and a lawyer who acted for a client to obtain a protection order divulged information relating to the client’s matter to the client’s brother when seeking payment of the client’s fees invoice from the client’s brother.13

[86] Permitted exceptions to the duty of confidence are contained in r 8.4.14 These include “where – (a) the client expressly or impliedly authorises the disclosure”. This could include circumstances in which the lawyer is representing the client in negotiations, where, with the client’s consent, certain information concerning the client may be divulged to the lawyer acting for the opposing party.

(b) Parties’ positions Mr AH
[87] Mr AH claims that Mr OS breached Mrs C’s confidence by sending copies of the draft will and covering letter to Mrs HR on 8 November 2016.

Mr OS


[88] In his response to Mr AH’s application for review Mr OS does not address this issue except to say that, as noted above, he “understood” that the family had agreed to the adjustment to Mrs C’s will as explained to him by Mrs HR and Mr AH.

11 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules, r 8.1. See also Federation of Law Societies of Canada “Model Code of Professional Conduct” (August 2017) r 3.3-1, Commentary [4] <www.flsc.ca>.

12 Morpeth v Ramsey LCRO 110/2009 (12 November 2009).

13 BS v YC LCRO 152/2010 (13 May 2011).

14 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 8.4.

(c) Discussion

[89] I accept that in the absence of Mrs C’s permission, the disclosure by Mr OS of any of her information held by the firm to a third party could amount to a breach of confidence.

[90] In applying the rules, the High Court has stated that whilst they are to be “applied as specifically as possible”,15 they “are also to be applied as sensibly and fairly as possible”.16

[91] Following that approach on the particular facts and circumstances of this matter, whilst Mr OS appears not to have had Mrs C’s consent to send to Mrs HR copies of the draft will and his 8 November 2016 letter, I do not consider an adverse finding against Mr OS is warranted. In reaching that decision I take into account the following:

– letter – [plus] suggested will”, the inference being that the forwarding of that information to Mrs HR was not as Mr AH states, “unrequested” by her.


(c) Mr AH has not provided evidence of Mr OS having sent a copy of [Mr OS’s] 8 November 2016 letter to anyone other than his client, Mrs C, and Mrs HR. Although he refers to Mr T having “found” Mr OS’s “cover letter and draft will” he does not elaborate except to suggest Mr T came across those papers when visiting Mrs C at [Sunny].

(3) Complaint against the firm

(a) Complaint by “any person”

[92] Section 132(1) of the Act provides that “any person may complain to the appropriate complaints service” about “(a) the conduct - (i) of a practitioner or former practitioner”. The word “practitioner means a lawyer or a conveyancing practitioner as the case may be”.17

15 Q v Legal Complaints Review Officer [2012] NZHC 3082, [2013] NZAR 69 at [59]

16 Stewart v Legal Complaints Review Officer [2016] NZHC 916, [2016] NZAR 900 at [62].

17 Lawyers and Conveyancers Act, s 6: “complaint means a complaint under section 132”. For a summary of the complaints process see the New Zealand Law Society website, ‘For lawyers, Regulatory’ section ‘Frequently asked questions’, ‘Who can make a complaint?’.

(b) Establish complaints process

[93] To enable a lawyer to respond to complaints raised by clients, rule 3.8 requires that the lawyer “must ensure that the lawyer’s practice establishes and maintains appropriate procedures for handling complaints by clients with a view to ensuring that each complaint is dealt with promptly and fairly by the practice”.18

[94] Rule 12 requires that “[a] lawyer must, when acting in a professional capacity, conduct dealings with others, including self-represented persons, with integrity, respect, and courtesy”. The qualification acting in a professional capacity “clearly contemplates the lawyer providing regulated services”.19

[95] By being concerned with a lawyer’s “dealings with others”, r 12 can be contrasted with other rules which contain lawyers’ duties and obligations towards their clients and other lawyers.

[96] As such, the duty of “integrity, respect, and courtesy” which is owed to “others” could, as with this matter on review, extend to persons to or from whom the lawyer has made enquiries or been enquired of, or has requested or received a request for information in relation to a client matter. In this context “integrity” means “[s]oundness of moral principle; the character of uncorrupted virtue; uprightness; honesty; sincerity”.20

[97] Illustrations of the application of the rule where an adverse finding has been made against the lawyer concerned include a lawyer’s manner of communications, and not responding to letters sent to him by another lawyer engaged by the complainants.21

(d) Parties’ positions

[98] Mr AH claims that both the firm and the Committee “sidestepped”, and “failed to address” his complaint that it was incorrect for Mr OS to have stated in [Mr OS’s] 8 November 2016 letter to Mrs C that [Mr OS] had received will “instructions” from Mrs HR and Mr AH.

18 New Zealand Law Society “Practice Briefing: Running An Effective Internal Complaints Process” (March 2014) <www.lawsociety.org.nz> at 3, 8.

19 JQ v QM LCRO 97/2011 (28 August 2012) at [23].

20 Oxford English Dictionary <www.oed.com> — see also lawyers’ duties of “respect and courtesy” owed to clients (r 3.1), and other lawyers (r 10.1).

21 EO & EP v VO LCRO 240/2010 (August 2011) at [7], [49] — see also r 10.1 which requires that “[a] lawyer must treat other lawyers with respect and courtesy”.

[99] He says when he first complained, had the firm acknowledged as Mr VI later did in their 7 June 2017 telephone conversation that Mr OS was “incorrect”, then that would “have ended the matter”.

(e) Discussion

[100] As noted above, “any person” can lay a complaint about a lawyer. The rules require lawyers to establish complaints procedures to deal with complaints by clients.

[101] As far as complaints by non-clients are concerned, a lawyer who receives such a complaint owes the person making the complaint, a third party, a duty of “integrity, respect, and courtesy”.

[102] In considering Mr AH’s complaint about Mr OS, I noted that Mr VI stated to Mr AH that it was “unfortunate” for Mr OS to have said in [Mr OS’s] 8 November 2016 letter to Mrs C that he had received will “instructions” from Mrs HR and Mr AH.

[103] However, Mr OS is adamant that they did put forward “a will proposal” to him. It therefore remains for me to consider whether the manner in which Mr VI interacted with Mr AH gives rise to any professional failings or shortcomings by Mr VI.

[104] At the relevant time, Mr VI was the general manager of the firm. It is not clear whether he held a practising certificate as a lawyer. If not, then as a non-lawyer employee of the firm, any issues of a professional nature that arose would fall under s 14 of the Act, unsatisfactory conduct in relation to employees who are not lawyers.

[105] Mr AH’s complaint was accompanied by transcripts of his telephone conversations with Mr VI on 7 and 9 June 2017 during which Mr VI listened to and responded to Mr AH’s concerns and questions.

[106] At the conclusion of the 7 June conversation Mr VI stated that he was “not neglecting” and was “working” on Mr AH’s complaint, and had “instructed the second partner who has reviewed the file”. He said he was yet to “sit down with” Mr OS and “make sure that we are clear on what we are actually saying” to Mr AH. He concluded by stating that he needed “another week” to “resolve” matters.

[107] Two days later on 9 June Mr VI stated that he had “conducted an investigation” in respect of which he had “a senior partner ... involved”. Also, that he was “satisfied that ...the appropriate action for [Mrs C] has been completed” and was “completely comfortable ... with what has actually happened”
[108] As noted earlier, Mr VI “acknowledge[d]” that Mr OS’s 8 November 2016 letter “was not well worded as it could have been”, but was nevertheless “convinced and happy with how [the firm] have acted on behalf of” Mrs C.

[109] In response to Mr AH’s question whether Mr VI was “happy with the discord [Mr] OS caused within the family”, Mr Morrison Jones stated that the firm had “handled [and] acquitted ourselves perfectly adequately”.

[110] The following week, on 15 June, Mr VI wrote to Mr AH stating he had:

asked one of the partners of the firm, in turn, to review the file and he has done so carefully, he has consulted [Mrs C] and in his view matters have been addressed appropriately and in line with [Mrs C’s] wishes.


[111] From my analysis, I do not consider that any of these communications give rise to any professional issues for Mr VI.

Decision


[112] For the above reasons, pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006, the decision of the Standards Committee is confirmed.

Anonymised publication


[113] Pursuant to s 206(4) this decision is to be made available to the public with the names and identifying details of the parties removed.

DATED this 21st day of December 2018


B A Galloway

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:

Mr AH as the Applicant

Mr OS and Mr VI as the Respondents Mr KP as a Related Person

[Area] Standards Committee [X] New Zealand Law Society

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