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OB v NC [2024] NZLCRO 69 (12 June 2024)

Last Updated: 2 August 2024

LEGAL COMPLAINTS REVIEW OFFICER

ĀPIHA AROTAKE AMUAMU Ā-TURE
Ref: LCRO 13/2024
CONCERNING
an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND

CONCERNING
a decision of the [Area] Standards Committee [X]

BETWEEN
OB and HG

Applicants

AND
NC

Respondent

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


DECISION

Introduction


[1] The applicants, Ms OB and Mr HG, have applied for review of a decision by the [Area] Standards Committee [X] (the Committee) dated 18 January 2024 to take no further action on their complaint about the professional conduct of the respondent, Mr NC.

Background


[2] The respondents are the daughter and son of the late Mr UG. They both reside overseas, Ms OB in the UK and Mr HG in the USA. They are represented by their mother, Mrs RT and her husband, Mr WT.

[3] Mrs RT was Mr UG’s first wife. She is an experienced estate administrator, having worked in the field for some decades as well as [redacted].

[4] Mr UG’s second wife was Mrs EG. His parents were Mr KG1 and Mrs RG. Mrs RG died in 2001.

[5] At the time of the events giving rise to the complaint, the respondent was a consultant to the incorporated law firm of [Law Firm A] (the Firm) and had been Mr UG’s solicitor for over 20 years. The principal and director of the Firm was Mr SF.

[6] Mr UG died in May 2017 leaving a will dated 16 February 2010. Under the will, in summary, Mr UG:

[7] The only trust established by the will was in respect of the residue of the estate, which was to be distributed to the applicants on their attaining 40 years of age. Both applicants were aged over 40 when Mr UG died.

[8] Following Mr UG’s death, the respondent obtained probate of the will in July 2017 and proceeded to execute it. The estate was of substantial value. The financially material assets comprised cash at bank, a residential property, life insurance policy proceeds and the loan to Mr KG and Mrs RG. There were also two vehicles, considerable household chattels and personal effects.

[9] There were issues with inspection and distribution of chattels initially because both applicants lived overseas and apparently did not get on with each other or agree on matters relating to the chattels. From 2020, Covid-19 border restrictions prevented them from coming to New Zealand. The respondent did not wish to distribute chattels without

1 The respondent says Mr UG’s father’s calling name was KG. The applicants and Mrs RT refer to him as Mr HG.

the agreement of both, which he says was not forthcoming. He says he eventually released the stored chattels to Mrs RT on her promise to do the same.


[10] By April 2019, administration of the valuable assets of the estate (i.e. excluding chattels) was substantially complete apart from the matter of the loan. Each applicant had received interim distributions of more than $1.1 million.

[11] Mr UG had directed in his will that repayment of the loan was not to be demanded until six months after Mr KG’s death. Mr KG survived him and died in May 2021.

[12] The amount of the loan was not stated in the will but was referred to in three statements of assets and liabilities prepared by Mr UG and left either with the will or in Mr UG’s papers, as at 27 October 2008, 16 February 2010 and 10 March 2012 respectively.

[13] In the 2008 statement, Mr UG ascribed a value of “$100,000 approx” to the loan. As at 16 February 2010, the date of his will, the figure was “$150,000 approx”. The 10 March 2012 statement specified “...original loan of $127,000 dated 13/7/1994 plus effective interest at 10% per annum for say past 18 years compounded equating to

$228,000 interest owing therefore grand totalling $355,000”.


[14] The respondent found a Deed of Acknowledgement of Debt (the Deed) confirming the principal sum of $127,000 and the date of advance. It had not been prepared or held by the Firm. It was found in Mr UG’s papers along with handwritten notes Mr UG had made about the loan.

[15] About three months after Mr KG’s death, the respondent obtained a copy of the probate of his will from the Court. The executrix and residuary beneficiary was Mr KG’s sister and the applicants’ aunt, Ms DG. The respondent engaged with the estate’s lawyers about repayment of the loan. He lodged a caveat against the title to the late Mr KG’s former property, which had been transmitted or transferred to Ms DG.

[16] At about this time (late 2021), the applicants formally appointed Mrs RT as their agent and engaged lawyers to advise them. The respondent consulted with the applicants’ lawyers about his correspondence with the lawyers for Mr KG’s estate about repayment of the loan.

[17] The respondent says that “differences arose as to whether Mr KG’s loan had been partly repaid and also regarding interest thereon”. In January 2022, two months after expiry of the six-month period following Mr KG’s death, his estate made a

repayment of $100,000 of, or on account of, the principal of the loan. The difference over the part repayment related to the balance $27,000 of the principal.


[18] The Deed provided that “... the borrowers will pay to the lendor (sic) interest ... computed from the 15th day of July 1994 at the rate of 10 per cent per annum payable annually if demanded within fourteen days (14) of each due date in respect of interest”.

[19] The applicants took the position that interest continued to accrue if it was not demanded annually. No interest had ever been demanded. Mrs RT took the view that it not only continued to accrue but also compounded annually. I infer that Ms DG must have adopted the more straightforward interpretation of the interest provision as a Marshall clause.2

[20] Owing to the passage of time, the correct interpretation of the interest clause made a difference of several hundred thousand dollars to the amount of the alleged liability of Mr KG’s and Mrs RG’s estates to Mr UG’s estate.

[21] As noted earlier, the loan was an asset bequeathed to the applicants. They sought an assignment from the respondent so that they could directly control the pursuit of the matter. A deed of assignment was executed in August 2022.

[22] The applicants lodged their own caveat on the title to Ms DG’s property and proceeded to issue High Court proceedings for recovery of the amount they claimed to be owing. The Court’s decision on the claim was issued in May 2024. The Court relevantly held that the $27,000 had been repaid in 1994, that the interest provision was indeed a Marshall clause, that no interest had been demanded and that none was owing.

[23] As at the date of his response to the complaint, the respondent held $71,000 of estate funds in the Firm’s trust account against what he considered to be the potential income tax liability of the estate should the applicants succeed in their claim for the interest allegedly owing on the loan. He says the parties had differing tax advice. He also says that a tax indemnity offered by the applicants was unacceptable to him because of the practical difficulty in seeking to enforce it, if necessary, with the respondents not being resident in New Zealand.

[24] The balance funds of the estate were distributed to the applicants shortly after the High Court held that no interest was owing, meaning that the estate had no potential liability for income tax on interest income.

2 So named for the Court of Appeal decision in Re Marshall (deceased) [1965] NZLR 851.


[25] The applicants as beneficiaries were dissatisfied with the manner in which the estate had been administered by the respondent as executor and with the quality and value of the Firm’s legal services in relation to estate administration.

The complaint


[26] The applicants’ complaint to the New Zealand Law Society Lawyers Complaints Service (NZLS) was filed on 11 May 2023 (a year before the applicants’ High Court claim for interest was determined). In making it, the applicants acknowledged they were not the respondent’s clients but were residuary beneficiaries with rights under the Administration Act 1969.

[27] Although the complaint named only the respondent as the lawyer complained about, the complaint particulars also referred to estate administration by the Firm and included a fees complaint.

[28] I will summarise the elements of the complaint either by quoting relevant statements and/or by paraphrasing them. The applicants complained about:

(g) failing to present estate administration statements to the applicants as residuary beneficiaries;

(h) failing to present “...any detailed invoices for [the respondent] so that we can be clear all the administration required has been attended to”;

(i) failing to provide them with copies of the Deed and Mr UG’s notes about the loan until 2023 (sic);3

(j) failing to register a caveat or a mortgage against the title to Mr KG’s and Mrs RG’s estates’ property as security for the sum owing under the Deed, as permitted by the Deed;

(n) not overseeing the correct completion of the death certificate such that it implied that the applicants were the children of Mrs EG rather than Mrs RT;4

3 The cited year appears to be a factual error.

4 The death certificate makes no reference to Mr UG’s children.


(w) lack of competence on the respondent’s part;

(x) not accounting to the applicants for all the assets of the estate and for funds deducted (also expressed as removing money from the trust account without reporting to the applicants);

(y) charging excessive fees.

[29] Almost all of the complaints are made specifically against the respondent and most are either expressly or by their nature made against him as executor. As outcomes of the complaint, the applicants sought:

[30] The respondent responded succinctly to each particular of the complaint.

The Standards Committee’s decision


[31] The Standards Committee’s decision dated 18 January 2024 was succinct and straightforward. It summarised the complaint as one of the respondent allegedly failing to undertake his duties as executor/trustee resulting in delay in distribution, failure to follow Mr UG’s instructions in the will, failing to provide relevant documents, failing to find records of the loan to Mr KG and Mrs RG and failing to pursue recovery of the loan.

[32] The Committee explained that the respondent, as a lawyer, did not act for the applicants and that the duties he owed to them as a lawyer were essentially limited to the duty, when acting in that capacity, to treat them with integrity, respect and courtesy.

[33] The Committee further explained that it had no jurisdiction to review the validity of the decisions of an executor and trustee and that only the High Court had that

jurisdiction. It made clear that this was the case specifically in relation to decisions made and steps taken or not taken regarding recovery of the loan from Mr KG and Mrs RG (or their estates). Only the High Court could consider the matter.


Application for review


[34] The application for review is dated 10 February 2024. It included a considerable volume of material commenting on the administration of the estate and detailed comments from each of the applicants and from Mrs RT on what they considered to be the respondent’s errors, omissions and failures in his execution of the will.

[35] The applicants’ desired outcomes were similar to those expressed in the original complaint. They requested that I:

[36] I note that Mr HG was legally represented from mid-2018 and that the applicants together have been legally represented since late 2021 as beneficiaries of Mr UG’s estate but, I infer, not in relation to their complaint to the NZLS and this application for review.

Review on the papers


[37] The parties were advised of my provisional view that the review could be undertaken on the papers pursuant to s 206(2) of the Lawyers and Conveyancers Act 2006 (the Act), which allows a Legal Complaints Review Officer (LCRO or Review Officer) 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. No objection to that course of action was received.

[38] 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


[39] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:5

... 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.


[40] More recently, the High Court has described a review by this Office in the following way:6

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.


[41] 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.

The issues


[42] The issues for consideration in this review are:

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

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


(a) Was the Committee correct to find that it had no jurisdiction to consider the applicants’ complaint about the respondent’s conduct as executor of Mr UG’s estate?

(b) Was the Committee correct to find that the complaint was solely about the respondent’s conduct as executor of the estate (or trustee)?

(c) If not, has the Committee properly considered elements of the complaint that do not relate to the respondent’s conduct as executor (or trustee)?

(d) In respect of each such element, who is the complaint against?

(e) Could and should the Committee have considered the applicants’ fees complaint?

Discussion


(a) Was the Committee correct to find that it had no jurisdiction to consider the applicants’ complaint about the respondent’s conduct as executor of Mr UG’s estate?

[43] The short answer to this question is “yes”. As the applicants themselves correctly stated in their complaint, they are residuary beneficiaries with rights under the Administration Act 1969. The administration of a deceased estate by an executor is governed by that Act. Only the High Court has jurisdiction to consider complaints or claims by beneficiaries against an executor. Accordingly, the Committee was correct to find that it had no jurisdiction to consider those matters. Nor do I.

[44] There are numerous Court decisions articulating the distinction between executor’s duties and solicitor’s duties. The following quote from a 2002 High Court decision7 is a useful general overview in the context of this complaint:

7 Hansen v Young [2003] 1 NZLR 83 at [85(b)–(g)].

by the trustee. Where the executor to the estate is also the solicitor, the advice or services may still be provided, but that is not done in that person’s capacity as solicitor.

[Paragraph (c) is a table giving examples of distinctions between typical executor tasks and typical lawyer tasks].


(d) This division of responsibilities remains the same notwithstanding that the solicitor acting in the estate may also be the executor. It is not usually necessary to consider too finely what the division is.

(e) It is the executors who are responsible to the Court (where administration is granted) and to the beneficiaries for the proper implementation of the will. Decisions affecting the course of administration are made by the executors in that capacity, although the solicitor or some other professional might be called upon to implement the decision.

(f) The solicitor’s obligations are much more limited. The solicitor is responsible to the executors, from whom the solicitor’s instruction stems and who are the solicitor’s clients.

(g) Where, as here, the bulk of the estate is left to a particular beneficiary, then that beneficiary’s view must be given substantial weight and in certain instances might be seen as paramount. The decision to defer to the wishes of a beneficiary is one for the executors alone, irrespective of whether they have obtained professional advice about it.

[45] I note that the Firm could not be directed to “wind up the Estate”, even by the High Court, as the Firm was not the executor. It appears that the executor has now wound up the estate.

(b) Was the Committee correct to find that the complaint was solely about the respondent’s conduct as executor (or trustee)?

[46] The short answer to this question is “no”. From the outset, the complaint was expressly a costs complaint (section 7 of the complaint form was completed) and a review of fees charged to the estate was the second outcome expressly sought by the applicants.

[47] There are arguably two other elements of the complaint that do not relate to the conduct of the respondent as executor. The first relates to the respondent’s manner of dealing with the applicants. The Committee correctly identified that the respondent had a duty, when acting in a professional capacity, to conduct his dealings with the applicants with integrity, respect and courtesy. In addition, the Committee identified the respondent’s general duty, which is expressed in r 10 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules), to promote and maintain professional standards.

[48] The applicants have also complained about deductions from estate funds and associated reporting.

(c) If not, has the Committee properly considered elements of the complaint that do not relate to the respondent’s conduct as executor of the estate (or trustee)?

[49] There is no reference in the Committee’s decision to the applicants’ fees complaint. It is unclear to me whether the Committee simply overlooked the matter or assumed that the complaint was about executor’s fees rather than legal fees. It cannot be a complaint about executor’s fees for the simple reason that the respondent does not appear to have had any right to charge any fees for his work as executor or trustee. I will return to this issue.

[50] I interpret the statements made in the complaint form regarding the applicants’ dealings with the respondent as a complaint of lack of courtesy, rather than integrity or respect. The specific comments relate to unavailability and poor responsiveness to emails and messages. The respondent refuted those assertions in his response.

[51] In relation to Ms OB, the respondent drew attention to the timing of the relevant emailed enquiries from her and his communications in response. He also commented on Ms OB’s apparent failure to read incoming emails and his consequent copying of his emails to her husband at her request. In relation to Mr HG, he noted that he had ceased to communicate directly with him from August 2018 partly because he was legally represented from that time and partly because Mr HG disclosed that he had been recording all calls with the respondent without the respondent’s knowledge or consent.

[52] The phrase, “when acting in a professional capacity” means when acting as a lawyer. It does not mean when acting as an executor. The applicants may well consider it is one and the same from their perspective but, from a legal and regulatory perspective, it is not. This is for the same jurisdictional reason as is explained above. A lawyer has that obligation because it is an incident of proper professional legal practice, as reflected in rr 10.1 and 12 of the Rules.

[53] This does not mean that there is not an expectation on any executor of an estate or a trustee to perform the relevant role in a professional manner; that is, in accordance with an executor’s obligations under the Administration Act 1969 or a trustee’s obligations under the Trusts Act 2019.8 It means only that the standard of conduct of an executor or trustee, in that capacity, is outside the scope of the lawyers’ professional

8 Or, in this instance, the Trustee Act 1956 for the period to 30 January 2021 when the Trusts Act 2019 replaced it.

disciplinary regime. In any event, the Committee has no jurisdiction to consider whether the respondent was appropriately courteous to the applicants in his capacity as executor.


[54] The correspondence on the file I have reviewed all appears to be from the applicants as beneficiaries relating to the respondent’s executorship of the Will. To the extent that the Committee considered any of it constituted communications between the applicants and the respondent as a lawyer, the Committee’s finding was that it did not find evidence that indicated that the respondent was discourteous towards the applicants or failed to maintain professional standards when working on the matter.

[55] On my reading of the materials, there does not appear to be any example identified by the applicants of any written communication from the respondent or the Firm that is expressed in a discourteous way or is otherwise unprofessional. I see no documentary evidence that persuades me the Committee’s finding was unsound.

[56] In my view, this element of the complaint derives from the perception expressed as the first particular of the complaint: “Their level of service to us in all respects has been terrible”. The respondent’s job as executor was not to “provide service” to the applicants but to execute the will in accordance with his obligations under the Administration Act 1969 and to fulfil his duties as trustee of the residuary estate. Any failure on his part to give due weight to the applicants’ wishes as the residuary beneficiaries is a matter they can only raise with the High Court.

[57] Although the Committee made no separate finding about the role of the Firm, the respondent was the Firm’s primary representative in its dealings with the applicants and it seems to me that the finding in relation to the respondent necessarily applies to the Firm as well. The role of the Firm was not to provide service to the applicants, who were not its clients, but to provide service to the respondent and to fulfil his instructions as executor. This does not equate to doing what the residuary beneficiaries want or to treat them as the Firm’s clients.

[58] To the extent that the applicants may have communicated with other people in the Firm, their duty was to report to the Firm’s client, the executor, and to respond or not in accordance with his instructions. In summary, I do not identify any legal or evidential basis for disturbing the Committee’s finding.

[59] The only other element of the original complaint that in my view does not relate to the respondent’s role as executor is the general comment about requiring a full review of deductions from estate funds. The tenor of the original complaint is that this comment was solely about the charging of allegedly excessive fees. In the review application, the applicants took a different tack in asserting non-compliance with Regs 9(2), 11 and 12

of the Lawyers and Conveyancers Act (Trust Account) Regulations 2008 (the TA Regulations) relating to the Firm’s debiting of fees from the trust account and annual reporting.


[60] In response, although noting that these are fresh matters raised on review, the respondent has provided copies of the Firm’s invoices for fees and disbursements. The invoices are of course addressed to the respondent as executor. They had not been provided to the Committee in response to the complaint.

[61] So far as the applicants are concerned, the respondent stated in response to the complaint that:

Four reporting or ledger statements are attached to the complaint, respectively dated 29 August 2017, 15 June 2018, 29 August 2018 and 4 April 2019. Each Reporting statement was accompanied by a full reporting letter advising on Estate assets disposed of and liabilities met. The reporting letters attached detailed fee invoices and included full and complete settlement and commission statements and invoices for every aspect for the sale of the house, and copies of third-party invoices for all expenses incurred. These were sent to [Mr HG] care of [his lawyer], and [Ms OB] directly and care of her husband Mr JB. If [the applicants] received the reporting statements they have produced, then they received everything. By letter dated 22 March 2022, further copies of all letters and statements were provided by [the Firm], on request, to the lawyer instructed by Mrs RT.


[62] In reply to the respondent’s response to the review application, Ms OB was critical of the respondent, stating that:

By coincidence or otherwise detailed invoices for all those missing right up to date were received a matter of hours after we received Mr NC’s response from the LCRO.

She proceeded to make various comments on matters of detail.


[63] Based on the summary from the respondent set out above, it is unclear to me what Ms OB meant by the invoices being “missing”, unless she disputes having received the first four invoices with the trust account statements or is referring only to the Firm’s 2021 and 2022 invoices.9 Nor is it clear what she meant by her reference to a “coincidence” when the respondent was simply responding to the fresh element of complaint that the applicants had made in the review application about inappropriate deductions from estate funds. Be that as it may, this is not a matter I can inquire into at first instance.

9 See [75] below.


(d) In respect of each such element, who is the complaint against?

[64] The respondent submits on review that the original complaint “...was not discernibly a fees complaint”. The submission is plainly untenable.

[65] On my reading of the materials, there may be some confusion in the applicants’ minds, and possibly also the respondent’s and the Committee’s, between fees for the respondent’s services as executor and fees charged by the Firm for its legal services to him as executor.

[66] In respect of his role as executor (or trustee in respect of the residuary estate), the respondent had no right to charge any fees absent either a provision in the will enabling him to do so, agreement with the beneficiaries or order of the High Court.

[67] The will contains a charging clause. Such clauses are to be construed strictly.10 I emphasise that the proper interpretation of a charging clause in a will is a legal issue that I have no jurisdiction to make any legal finding about. For disciplinary purposes, however, I have to form a view as to its apparent effect. On its plain wording, the clause appears to enable a solicitor trustee to charge for his legal services provided to the estate but does not enable charging for work as executor or trustee. There is no suggestion of an agreement with beneficiaries or a relevant Court order.

[68] If there is any issue as to whether the respondent might have charged the estate for his work as executor, as distinct from charging for his work as solicitor to the estate acting on his own instructions as executor, that is a matter the applicants can raise with the High Court. Should they do that, the respondent as executor can apply for an order determining reasonable remuneration to be paid (regardless of whether the charging clause enables him to be paid).

[69] I interpret the fees complaint as a complaint about the fees charged by the Firm for its legal services. In response to the complaint, the respondent stated simply that he considered the fees charged to be fair and reasonable. His response did not address the reasonable fee factors under r 9.1 of the Rules.

[70] The fees complaint is necessarily against the Firm, not against the respondent. The respondent was a consultant to the Firm at the relevant time and, in that capacity, an independent contractor to the Firm. A fees complaint does not lie against an employee of or contractor to a law firm. It is the incorporated Firm that has charged the fees and is responsible for setting them.

10 Spencer v Spencer [2013] NZCA 449, [2014] 2 NZLR 190 at [90]–[91].


(e) Could and should the Committee have considered the applicants’ fees complaint?

[71] Although the respondents were not the Firm’s clients, they were entitled under s 160(1) of the Act to make a complaint about the amount any bills of costs rendered by the Firm to the estate.

[72] The Committee had jurisdiction to consider the fees complaint relating to the fees charged by the Firm for legal services provided to the respondent as executor. On the basis of the absence of any reference to the matter in its decision, it has failed to exercise that jurisdiction.

[73] Regulation 29 of the Lawyers and Conveyancers Act (Complaints Service and Standards Committees) Regulations 2008 (the CS Regulations) prohibits a standards committee from reviewing a bill of costs rendered more than two years prior to the date of the complaint unless it finds there are “special circumstances”. “Special circumstances” are not defined but the term has been the subject of numerous disciplinary decisions.

[74] The complaint was received by the NZLS on 11 May 2023. That is much later than two years after the last of the four invoices referred to in the respondent’s response to the complaint, that the respondent says were provided to the applicants at the time. I infer from Ms OB’s comment that she disputes having received them. If so, it is not appropriate for me to inquire into the factual dispute at first instance. Nor is it appropriate for me to express any view on whether or not there are “special circumstances”.

[75] The Firm has since rendered three further invoices, dated 29 July 2021, 31 March 2022 and 31 May 2024 respectively. Reg 29 of the CS Regulations does not apply to them. At the time of the complaint, the respondent had yet to complete his administration of the estate, pending resolution of the tax liability issue, possibly confirmation of disposal by Mrs RT of a “gold bar” delivered to her and distribution of the remaining funds. The Firm’s 31 May 2024 invoice was for the Firm’s costs to the date of final distribution.

[76] In providing his response to the complaint, the respondent was not a representative of the Firm. He had left it three years previously. Perhaps partly as a consequence (but mostly because all other aspects of the complaint related to his conduct as executor), the fees complaint is addressed almost in passing, in one sentence (at point 29 of his response dated 15 November 2023).

[77] In his covering email of 17 November 2023, Mr SF stated: “Where the complaint refers to the conduct of [the Firm]/me or Ms LK, for our own part, we endorse and/or

confirm [the respondent’s] comments. The respondent had made no comments (other than the one sentence). In my view, the Firm has to have the opportunity to provide a proper response on the fees complaint in its own right having regard to the distinctions I have drawn.


[78] To the extent that the Firm’s invoices might (hypothetically) incorporate charges for work undertaken by the respondent as executor or trustee, the Committee has no jurisdiction. In that scenario, if it were to consider the fees complaint, the Committee would need to distinguish between legal services to the estate (including such legal services provided by the respondent) and work undertaken by the respondent as executor or trustee and restrict its assessment to the former.

(f) What other elements of the complaint does the Committee have jurisdiction to consider?

[79] Although the original complaint did not include the element of alleged non- compliance with any of Regs 9, 11 and 12 of the TA Regulations, I consider that it would be inappropriate to take an unduly technical approach to the matter for four reasons. The first is that there was a broadly expressed assertion by the applicants about inappropriate deductions from estate funds that has not been addressed. Secondly, as with the fees complaint, this complaint element necessarily lies against the incorporated Firm, not the respondent. Thirdly, the assertion appears to have been prompted partly by a misunderstanding on the applicants’ part of their entitlement to approve bills of costs rendered to the estate. Fourthly, on the information now available, it may be that the matter can readily be dealt at the s 137 stage of the Committee’s reconsideration process.

(g) What is the appropriate outcome of the review?

[80] It follows that the complaint needs to be partially reconsidered.

Decision


[81] Pursuant to s 211(1)(a) of the Act:

(b) the Committee’s finding that there is no evidence of the respondent breaching his duty to deal with the applicants in his professional capacity (as a lawyer) with integrity, respect and courtesy (for the purposes of both r 10.1 and r 12 of the Rules) and its decision to take no further action on that aspect of the complaint are confirmed.

[82] Pursuant to s 211(1)(a) of the Act, the Committee’s decision is reversed in all other respects.

[83] Pursuant to s 201(1)(a) of the Act, I direct the Committee to reconsider the fees complaint and inquire into it on the basis that:

[84] Pursuant to s 201(1)(c) of the Act, I request the Committee to supply a follow- up report to me when the reconsidered aspect of the complaint has been determined, in the form of a copy of its decision on that aspect.

[85] Pursuant to s 211(1)(a) of the Act, I direct the Committee to receive and consider, pursuant to s 137(1) of the Act, the complaint of breach of Regs 9, 11 and 12 of the TA Regulations as a complaint made against the incorporated Firm. The Committee does not need to report to me about that.

Other matters


[86] The applicants need have no qualms about the residuary estate being charged for the Firm’s responses to the review application and the matters referred to the Committee for reconsideration. The Firm cannot do that.

Publication


[87] Section 206(1) of the Act requires that every review must be conducted in private. Section 213(1) of the Act requires a Review Officer to report the outcome of the review, with reasons for any orders made, to each of the persons listed at the foot of this decision.

[88] Pursuant to s 206(4) of the Act, a Review Officer may direct such publication of his or her decision as the Review Officer considers necessary or desirable in the public interest. “Public interest” engages issues such as consumer protection, public confidence in legal services and the interests and privacy of individuals.

[89] Having had regard to the issues raised by this review, I have concluded that it is desirable in the public interest that this decision be published in a form that, subject to the following paragraph, does not identify the parties or others involved in the matter and otherwise in accordance with the LCRO Publication Guidelines.

DATED this 12TH day of June 2024


FR Goldsmith

Legal Complaints Review Officer

In accordance with s 213 of the Act, copies of this decision are to be provided to: Ms OB and Mr HG as the applicants

Mrs RT and Mr WT as the applicants’ representatives Mr NC as the respondent

[Law Firm A]

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

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