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High Court of New Zealand Decisions |
Last Updated: 4 September 2018
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CIV-2018-404-000117
[2018] NZHC 1869 |
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UNDER
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the Judicial Review Procedure Act 2016, New Zealand Bill of Rights Act 1990
and Part 30 of the High Court Rules 2016
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BETWEEN
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GREGORY ALEXANDER KEENE
Applicant
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AND
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LEGAL COMPLAINTS REVIEW OFFICER
First Respondent
JESSE LIU, STEVEN LAU and DINAH QIU
Second Respondents
NEW ZEALAND LAW SOCIETY
Intervener
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Hearing:
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19 July 2018
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Appearances:
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GM Illingworth QC for Applicant Second Respondents in person
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Judgment:
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27 July 2018
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JUDGMENT OF DOWNS J
This judgment was delivered by me on Friday, 27 July 2018 at 11 am
pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Simpson Dowsett Meggitt, Auckland. GM Illingworth QC, Auckland.
Meredith Connell, Auckland. Copy to: Second Respondents
KEENE v LEGAL COMPLAINTS REVIEW OFFICER [2018] NZHC 1869 [27 July 2018]
The case
[1] Rules of professional ethics govern barristers and solicitors.1 This case is about two closely related rules, both concerned with independence in litigation. They provide:
Independence in litigation
13.5 A lawyer engaged in litigation for a client must maintain his or her independence at all times.
....
13.5.3 A lawyer must not act in a proceeding if the conduct or advice of the lawyer or of another member of the lawyer’s practice is in issue in the matter before the court. This rule does not apply where the lawyer is acting for himself or herself, or for the member of the practice whose actions are in issue.
[2] The Law Society’s Standards Committee found Mr Gregory Keene, a barrister, had breached both rules, and hence engaged in unsatisfactory conduct.2 The Legal Complaints Review Officer upheld the determination in relation to r 13.5, but quashed that in relation to r 13.5.3.3 Mr Keene seeks judicial review of the adverse determination in relation to r 13.5. Mr Steven Lau, Mr Keene’s former client, seeks judicial review of the quashed determination in relation to r 13.5.3.4
[3] The case is already old.
2 Standards Committee Determination No. 5936, 20 August 2013, at para 73.
3 Keene v Liu LCRO 276/2013, LCRO 293/2013, LCRO 242/2016, 23 November 2017 at [111]
Mr Keene sought an adjournment. I granted him one. Mr Keene filed additional evidence and submissions. See Keene v Legal Complaints Review Officer HC Auckland CIV-2018-404-117, 3 July 2018 (Minutes (No 1 and 2) and 12 July 2018 (Minute (No 3)).
Background
[4] The background is important.
[5] Mr Jessie Liu is Mr Lau’s and Ms Dinah Qiu’s son. Mr Liu was badly assaulted at school. His parents believed the school did not handle matters well. They engaged Mr Derek Cutting, a solicitor, and in turn, Mr Keene. Mr Keene instituted proceedings against the school. But, the couple became dissatisfied with his services.
[6] On 19 December 2008, Mr Lau and Ms Qiu wrote to Mr Keene to end their professional relationship. Their brief letter made it clear they considered his performance unsatisfactory and fees unreasonable. Mr Keene sent letters in response on 23 December 2008, 5 February and 11 February 2009. The last acknowledged the couple’s anticipated complaint to the Law Society.
[7] On 24 March 2009, Mr Keene and Mr Cutting filed—in the latter’s name—a statement of claim for the balance of Mr Keene’s unpaid fee: a little over $15,000.5 The claim identified Mr Keene as counsel. Mr Keene signed the notice of proceeding. The claim referred to the couple’s anticipated complaint and asserted there was no basis for it.
[8] Mr Lau and Ms Qiu made their complaint on 14 April 2009. Consistently with their 19 December letter, Mr Lau and Ms Qiu alleged Mr Keene’s services were unsatisfactory and his fees unreasonable. The complaint acted to stay the claim for Mr Keene’s fee.6
[9] On 18 February 2010, the Law Society advised it would take no further action on the complaint. On 1 October 2010, the Legal Complaints Review Officer dismissed the couple’s application for review.7
5 By then, the couple had paid Mr Keene approximately $21,000.
6 Lawyers and Conveyancers Act 2006, s 161.
7 Liu v Keene LCRO 44/2010, 1 October 2010.
[10] On 14 October 2010, Mr Keene wrote to the Registrar of the District Court seeking judgment by default on the basis the claim had been served on 2 April 2009 and the couple had not taken steps to defend it. Default judgment quickly issued.
[11] On 15 November 2010, Mr Lau and Ms Qiu applied to set aside default judgment. Their application said, among other things, the claim was “highly disputed”. It implied the couple did not accept the review officer’s decision:
There is nothing to suggest that the legal complaints service has made any decision or order to uphold Mr Keene’s allegation for any particular amount. In addition, the defendants have a reasonable legal argument that the plaintiff’s claim is precluded by the Law Practitioners Act 1982 and the Lawyers and Conveyancers Act 2006.
[12] Mr Keene filed a notice of opposition to the application, and an affidavit attaching correspondence between himself and Mr Lau and Ms Qiu. They responded with an application for an order Mr Keene “cease acting in the ... proceedings”. Their application said Mr Keene had been their lawyer and they wished to “clarify facts”. It described the proceedings as “contentious”. The couple cited rr 13.5, 13.5.1 and
13.5.4 of the rules.
[13] On 17 December 2010, Mr Keene swore a second affidavit attaching the report of the Law Society costs reviser and a copy of his 14 October letter to the Registrar. On 22 December 2010, Mr Keene filed submissions opposing both couple’s applications, observing “no particular point of evidence [was] of a contentious nature”.
[14] Mr Lau and Ms Qiu also filed submissions. They said the review officer had not upheld “any particular” invoice, and Mr Keene had not “given [them] any notice” he would seek default judgment.
[15] Mr Keene appeared at the hearing. Judge M E Sharp held Mr Keene was entitled to do so as the fees were his, and Mr Keene’s evidence was not “of a contentious nature”.8 The Judge also dismissed the couple’s application to set aside default judgment.9 The Judge recorded Mr Lau’s and Ms Qiu’s apparent “sense of
8 Email directions of Judge Sharp dated 19 January 2011.
9 Cutting v Liu DC Auckland CIV-2009-004-678, 20 January 2011 at [26].
grievance” about Mr Keene’s “failure to give or notify them of a couple of Court documents advising of times for judicial conferences and the like”.10
[16] Mr Lau and Ms Qiu lodged an appeal to the High Court. Their extensive appeal notice was directed at the dismissal of the application to set aside the default judgment, and at Mr Keene’s apparent self-representation. The notice said his role in the proceedings is “far from clear and difficult to follow in law, whether he was acting for the plaintiff in his dual roles as counsel and witness, or as a plaintiff in his capacity of a barrister sole to sue for his fees”. The notice also said Mr Keene had miscalculated the period for default judgment.
[17] On 27 June 2011, Mr Keene filed submissions in the High Court. He said Mr Lau and Ms Qiu’s complaint had been dismissed by the Law Society, and there was no basis to preclude him from acting. He also said r 13.5.3 permitted his appearance, as he was “acting for himself”.
[18] Williams J allowed the couple’s appeal as the period enabling default judgment had not expired.11 His Honour expressed the view Mr Keene ought not to have appeared either before him or in the District Court, and had breached r 13.5.3 in doing so. It is important to record, fully, what Williams J said:12
[16] The question under this heading is whether Mr Keene was allowed to appear on this proceeding either in the District Court or this court. I think the combined effect of Atkinson v Pengelly and r 13.5.3 of the Rules of Conduct and Client Care (RCCC) is that Mr Keene should not have been allowed to appear in either court. Pengelly stands for the intervention rule that precludes a barrister from suing for his or her own fees. There are, I accept, moves afoot to abolish that rule. I neither express nor have an opinion in that debate but until abolition occurs, Pengelly remains good law.
[17] Mr Keene is not of course in breach of that rule in this proceeding because he is technically appearing for Mr Cutting not for himself, even though the fee Mr Cutting sues for is entirely Mr Keene’s. That is not the problem.
[18] Rule 13.5.3 of the RCCC provides as follows:
10 Cutting v Liu, above n 9, at [22].
11 Liu v Cutting HC Auckland CIV-2011-404-695, 14 July 2011. Williams J later declined permission for an appeal, noting his observations about Mr Keene had not been determinative; Liu v Cutting HC Auckland CIV-2011-404-695, 6 October 2011.
12 Liu v Cutting, above n 11.
A lawyer must not act in a proceeding if the conduct or advice of the lawyer or of another member of the lawyer's practice is in issue in the matter before the court. This rule does not apply where the lawyer is acting for himself or herself, or for the member of the practice whose actions are in issue.
[19] The first proposition is that Mr Keene’s conduct is squarely in issue in this appeal — both as to the quality of the work he did when instructed, and as to the fact that he appeared in the District Court to procure the default judgment and in this court to defend it. Mr Keene says his conduct is not at issue because his fee for work has been upheld “finally and conclusively” by the LCRO. He argued it is no longer open to the appellants to contest the substance of his work or the bill itself. I do not think that submission can be correct technically because it will always be open to this court to correct errors of law committed by entities exercising statutory powers. In this case, the appellants argue that Mr Keene’s performance fell below the standard required by the Lawyers and Conveyancers Act. They say for example that he withheld documents from them and told them he had not. Whatever their rights and wrongs, they are clearly allegations relating Mr Keene's conduct.
[20] Even if the foregoing is wrong, it is clear in my view that by appearing in support of the application for default judgment, and for the respondent in this appeal, in circumstances where his appearance is specifically objected to, as a ground of opposition and appeal, Mr Keene engaged in conduct now at issue in this appeal in accordance with the first sentence in r 13.5.3. In short, I am clear that appearing in support of this proceeding amounts to “conduct
... in the matter before the court” and it is obviously in issue.
[21] Mr Keene argued that while that might be the case in terms of the strict wording of the rule, its spirit is not engaged. I am not quite sure I understand the point being made, but in any event the words appear to me to be reasonably clear, and must be applied.
[22] Mr Keene is therefore caught by the primary rule in 13.5.3 unless he can fit within its exception. That is only, as Judge Sharp correctly noted, if he is acting for himself. Judge Sharp said he effectively was. The problem with that conclusion is that it offends the rule in Pengelly. Mr Keene is not allowed to act for himself so cannot, in my view, bring himself within the exception to this rule.
[23] I am not sure whether that problem is enough on its own to allow the appeal. I need not express an opinion on that given my conclusion on later matters. But it must be relevant in my overall assessment of the appeal.
[19] On 22 May 2012, Mr Lau and Ms Qiu complained again about Mr Keene to the Law Society. This complaint included a contention Mr Keene should not have acted as counsel in the (still live) claim for his fee.
[20] As observed, the Standards Committee found Mr Keene’s conduct unsatisfactory. It concluded Mr Keene had breached rr 13.5 and 13.5.3 by appearing as counsel in the District Court and High Court to recover his fee:13
The Committee took note of what had taken place in court in terms of Mr Keene appearing in the matter, reflected in the comments/directions/minutes of the various Judges involved in the various proceedings. The Committee concluded that, whatever the final outcome was in court regarding the issues, seen overall Mr Keene should have known that it was inappropriate that he continued to act as counsel in the matter, particularly once the proceedings reached the High Court where an appearance in person was required.
The Committee considered that it was unsatisfactory for Mr Keene to try to rely on very technical arguments to get around what appeared on the face of it to be inappropriate in the circumstances.
Outcome
On the basis of its deliberations, the Committee considered that Mr Keene had contravened rr 13.5 and 13.5.3 of the RCCC. Accordingly, in respect of this aspect of the complaint, the Committee made a determination that there had been unsatisfactory conduct on the part of Mr Keene in terms of s 12(c) of the Act, pursuant to s 152(2)(b) of the Act.
[21] All parties sought review. The Legal Complaints Review Officer upheld the r 13.5 determination, but quashed the 13.5.3 finding.14
[22] Two later developments should be recorded. First, Mr Keene applied to the District Court for leave to continue to appear as counsel on Mr Cutting’s claim in relation to Mr Keene’s fee. Leave was declined in 2013.15 Mr Keene appealed—this time represented by counsel—to the High Court. In 2014, Moore J dismissed the appeal.16 Second, the claim for Mr Keene’s fee was largely successful in the District Court. It reduced the fee from $15,125.82 to $10,500. Mr Lau appealed to the High Court. Hinton J dismissed his appeal earlier this year.17
13 Standards Committee Determination No. 5936, 20 August 2013, at para 71–73
14 Keene v Liu, above n 3, at [111].
15 Cutting v Liu DC Auckland CIV-2009-004-678, 1 November 2013.
16 Cutting v Liu [2014] NZHC 1063, [2014] 3 NZLR 224.
17 Liu v Cutting [2018] NZHC 33.
[23] These events warrant statement of the obvious: this judgment is concerned only with the earlier determinations of the Legal Complaints Review Officer, not more. Furthermore, both must be determined according to events to that point, not hindsight.
[24] As observed, the case is already old. Mr Illingworth QC said much of the delay is attributable to systematic pressure on the Legal Complaints Review Officer, whose decision was not released until 23 November 2017.
The decision of the Legal Complaints Review Officer
[25] The review officer found Mr Keene had breached r 13.5 because he had appeared as counsel for Mr Cutting, and Mr Cutting’s action was for the balance of Mr Keene’s fee:18
It is fundamental to the proper conduct of litigation that counsel acting is as independent and free from personal interests as possible. Although Mr Keene was acting for Mr Cutting the objective of the litigation was to recover Mr Keene’s fee from the complainants. Mr Keene therefore cannot say he acted without regard to his personal interests. The fact that he had a personal interest in the litigation, undermined what should have been a more or less unassailable presumption of independence on the part of counsel.
[26] Contrary to the view expressed by Williams J, the review officer found Mr Keene had not breached r 13.5.3. The review officer focused on Mr Keene’s appearance at the High Court appeal. She considered the appeal was directed at whether judgment ought to have been obtained by default—in turn an assessment of technical matters—not Mr Keene’s handling of his former clients’ brief. The officer also considered it was not then clear Mr Keene’s conduct was in issue. While there “certainly were problems with Mr Keene acting”,19 the officer was not satisfied Mr Keene had breached r 13.5.3.
A precis of the arguments
[27] On behalf of Mr Keene, Mr Illingworth contends the review officer erred in law in relation to r 13.5.20 He submits the officer interpreted the rule in absolutist
18 Keene v Liu LCRO 276/2013, 23 November 2017 at [30].
19 At [54].
fashion—my phrase, not his—so any personal interest in litigation necessarily compromised independence. Mr Illingworth submits Mr Keene’s personal interest in the debt did not compromise his independence because Mr Keene was no longer acting for the couple, and his personal interest in the outcome “was not materially different from the personal interest of any lawyer who carries out legal work in the expectation of being paid for the work in question”.
[28] However, Mr Illingworth contends the officer did not err in law in relation to r 13.5.3 for the reasons she gave, and because the District Court expressly permitted Mr Keene to appear on the application by Mr Lau and Ms Qiu to set aside default judgment.
[29] Mr Lau submits the review officer was correct in relation to r 13.5, but Williams J’s view should prevail in relation to r 13.5.3.
[30] The Law Society advances similar submissions to Mr Illingworth, albeit without reference to fact. It observes r 13.5 exists to secure a lawyer’s independence as an advocate for his or her client, and guards against the lawyer being drawn into another role. Rule 13.5’s sub-rules inform its interpretation. All are concerned with a lawyer’s position in litigation, not “the motivations of the lawyer acting”. The mere fact there is a fee consequence to a lawyer acting does not, by itself, compromise independence in litigation.
[31] Consequently, the Law Society submits a lawyer does not contravene r 13.5 by acting in the recovery of his or her fees unless other aspects enter the mix; for example, doing so when the conduct of his or her former brief is in issue, in which case r 13.5.3 would be breached.
Analysis
[32] In context, the two rules read:
Independence in litigation
13.5 A lawyer engaged in litigation for a client must maintain his or her independence at all times.
13.5.1 A lawyer must not act in a proceeding if the lawyer may be required to give evidence of a contentious nature (whether in person or by affidavit) in the matter.
13.5.2 If, after a lawyer has commenced acting in a proceeding, it becomes apparent that the lawyer or a member of the lawyer’s practice is to give evidence of a contentious nature, the lawyer must immediately inform the court and, unless the court directs otherwise, cease acting.
13.5.3 A lawyer must not act in a proceeding if the conduct or advice of the lawyer or of another member of the lawyer’s practice is in issue in the matter before the court. This rule does not apply where the lawyer is acting for himself or herself, or for the member of the practice whose actions are in issue.
13.5.4 A lawyer must not make submissions or express views to a court on any material evidence or material issue in a case in terms that convey or appear to convey the lawyer’s personal opinion on the merits of that evidence or issue.
[33] As will be apparent, the rules are directed at lawyers involved in litigation. All are mandatory—a lawyer “must maintain ...” or “must not ...”. Self-evidently, all are concerned with maintenance of a lawyer’s independence in litigation. Hence the heading, “Independence in litigation”; the broad and embracing nature of r 13.5; and the various sub-rules; each of which is directed at discrete circumstances in which such independence might otherwise be compromised.
[34] The rules exist to ensure lawyers in the conduct of litigation discharge their dual responsibilities to the Court and client. The latter are fiduciary in nature, and well known. Central to them is the notion of undivided loyalty, which is why a lawyer must act “solely for the benefit of the client”.21 The former responsibilities were described by Mason CJ in this way; readers will note the emphasis given by his Honour to “independent judgment”:22
.... a barrister’s duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every
21 The rules, r 5.2.
22 Giannarelli v Wraith (1988) 165 CLR 543 at 556–7.
rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case. In such an adversarial system the mode of presentation of each party’s case rests with counsel. The judge is in no position to rule in advance on what witnesses will be called, what evidence should be led, what questions should be asked in cross-examination. Decisions on matters such as these, which necessarily influence the course of a trial and its duration, are made by counsel, not by the judge. This is why our system of justice as administered by the courts has proceeded on the footing that, in general, the litigant will be represented by a lawyer who, not being a mere agent for the litigant, exercises an independent judgment in the interests of the court.
[35] The rules above say nothing about fees, at least explicitly. Which leads to the first question raised by the review officer’s determination: is r 13.5 infringed by the mere fact a lawyer is seeking, through litigation, to recover his or her own fee?
[36] Four things suggest the answer is no. First, while lawyers sometimes act pro bono, normally they do not. The legal profession could not otherwise exist. Second, other rules of professional ethics permit conditional fee arrangements, which provide a financial incentive for a lawyer in the outcome of litigation.23 Put broadly, “succeed” and the lawyer receives a fee; “fail” and the lawyer does not. Third, a lawyer has a financial interest in a case whenever he or she advises a client to continue with it, in the sense the lawyer benefits from payment of ongoing fees. No one has suggested this, without more, compromises professional independence. Again, if it did, the legal profession could not exist. Fourth, curial interpretation of the sub-rules to r 13.5 eschews absolutism in favour of materiality. For example, in HMI Technologies Ltd v Signopsys Electronic Signs Ltd Asher J said:24
Courts should hesitate before automatically concluding that lawyers who have had some involvement in the train of events leading up to a proceeding have a lack of objectivity or independence. If that step does not mean they will be required to give contentious evidence, and their conduct or advice is not in issue, rr 13.5–13.5.3 may not be breached. The independence of the lawyer may be no different from that of any other lawyer acting for a long-standing client. In the New Zealand context with its fused profession, there is no unacceptable degree of conflict of interest in counsel acting in litigation for long-standing clients. There are obvious cost advantages in a party retaining its lawyers for the purposes of litigation, as well as the benefit of maintaining and drawing on an ongoing relationship. A client’s ability to have their
23 The rules, rr 9.8 and 9.10. See also the Lawyers and Conveyancers Act 2006, ss 333–336.
lawyers of choice acting for them should not be interfered with unless there is good reason to do so.
[37] It follows the review officer erred in law in relation to this rule. She presupposed the mere fact Mr Keene had a financial interest in the outcome of the litigation constituted an infringement of r 13.5. On this analysis, r 13.5 would be breached if a lawyer acted for himself or herself in suing for their fee even if the client had expressed complete satisfaction with the lawyer’s performance and acknowledged liability, but said they would not pay the fee—because they did not want to.
[38] Before moving on, it is important to be clear what the conclusion is and what it is not. As observed, the conclusion is the mere fact a lawyer has a financial interest in the outcome of the litigation does not infringe r 13.5. The conclusion is not a barrister may sue to recover his or her fee, a course specifically precluded by another rule of professional ethics and Atkinson v Pengelly.25 Which leads to r 13.5.3.
[39] A concise statement of principle in relation to this rule can be found in Cutting v Liu, the decision of Moore J concerned with later events between Mr Keene and Mr Liu; see [22]. His Honour observed:26
It is, however, by no means inevitable that where a lawyer’s advice or conduct may form part of the evidence or matters before the Court the lawyer is prevented from acting under r 13.5.3. The rule refers to “conduct or advice of the lawyer ... in issue ...”.
In other words, the conduct or advice must be a material or relevant issue for consideration in the proceedings. This principle, at least in part, reflects the public policy of professional propriety.
In assessing whether the conduct or advice of the lawyer is in issue every case will require an assessment of how contentious or controversial the advice or conduct is in the wider context of the litigation.
[40] Mr Illingworth submits the review officer approached her task consistently with the test in the final paragraph. I disagree. Moore J’s reference to “the wider context of the litigation” is unremarkably, a reference to totality of circumstance. However, the review officer had little regard to events before the appeal to Williams J, about which more shortly. And, having focussed on the appeal, the review officer
25 The rules, r 14.4 and Atkinson v Pengelly [1995] 3 NZLR 104.
26 Cutting v Liu, above n 16, at [60]–[62].
emphasised the technical nature of the arguments advanced by Mr Keene in relation to the calculation of the default judgment period without consideration of the broader—and all important—forensic context. The decision makes this clear.
Extensive citation is necessary:27
[47] It can reasonably be assumed that Mr Keene attended the appeal prepared to argue the relevant law that was determinative of the appeal, i.e. the interplay between the District Courts Rules and s 161. Those were the matters that were at issue in the complainants’ application to set the default judgment aside.
[48] Without a valid defence or counter claim having been filed, Mr Keene’s conduct and advice were not at issue, except to the extent that Williams J was troubled by Mr Keene having appeared as an advocate in his own cause. For the purposes of professional standards, that issue has been dealt with above.
[49] The High Court’s discussion around r 13.5.3 is predicated on the complainants’ appeal being successful so they could put Mr Keene’s conduct and advice at issue in the summary judgment proceeding. In addition to his misgivings about Mr Keene acting in the appeal, in reliance on Judge Sharp having given him leave to act in the District Court, Williams J refers to what will happen: the complainants will defend themselves against the claim for Mr Keene’s fees, and they will mount a counter claim based on a lack of competence on Mr Keene’s part, i.e. his conduct and advice. The complainants would only have been able to take those steps if their appeal succeeded. If it did not, summary judgment stood and could be enforced, without Mr Keene’s conduct or advice having been in issue.
[50] Conduct regulated by r 13.5.3 is not contingent on future events. Rule
13.5.3 is engaged when the conduct, or advice, of the lawyer acting in the proceeding is in issue in the matter before the court, as it plainly was once the judgment had been set aside. By that stage Mr Keene was no longer acting for Mr Cutting. He had been replaced.
[51] It seems to me that r 13.5.3 calls for an assessment of present facts known to the lawyer, namely:
(a) what is (not will be or may be) the matter before the Court; and
(b) what is (not will be or may be) in issue in that matter.
[52] That is not to suggest the rule is applied rigidly. Circumstances will vary. Although the complainants did not have the benefit of legal representation, the evidence, pleadings and other documents lawyers routinely filed in proceedings should generally illuminate which matters are before the Court, what issues of fact and law the court is to determine, and whether the conduct or advice of the lawyer acting is relevant to determination of those issues.
[53] It is not entirely clear from the materials available on review that r 13.5.3 was engaged before the appeal, or that any conduct on Mr Keene’s
27 Keene v Liu, above n 3.
part after the appeal was determined contravened r 13.5.3, when conduct of Mr Cutting’s proceeding was handed to other counsel.
[41] Ironically, the review officer found there “certainly were problems with Mr Keene acting”.28 But, she did not articulate what these were.29
[42] It follows the review officer erred in law in relation to r 13.5.3 as well. To recapitulate, rather than assessing the contentiousness of Mr Keene’s appearances against “the wider context of the litigation”, the officer focussed on one aspect of the litigation only—the appeal to Williams J. The officer then relied heavily on the technical nature of the arguments advanced by Mr Keene in relation to default judgment. In summary, the officer’s assessment was narrow when it should have been broad.30
[43] Mr Illingworth contends the review officer’s determination should not be quashed because Mr Keene had been “cleared” by the Law Society by the time of the appeal to Williams J. Again, I disagree. As Williams J observed, it was open to Mr Lau and Ms Qiu to seek judicial review of the review officer’s determination. The mere fact the review officer had dismissed their complaint did not necessarily mean the complaint was at an end.
[44] Mr Keene knew by the time of the appeal he was dealing with lay people who continued to contest, albeit somewhat awkwardly, not fewer than four things:
(a) The adequacy of his services.
(b) The reasonableness of his fees.
(c) Mr Keene’s conduct in relation to the claim to recover them through default judgment.
28 Keene v Liu, above n 3, at [54].
29 The officer’s reference could be to the infraction of r 13.5, but this observation was made in the context of r 13.5.3.
30 Mr Illingworth submits error of this type is not an error of law, as it is not of a jurisdictional nature. However, the distinction between jurisdictional and non-jurisdictional errors of law is no longer one that troubles New Zealand Courts for reasons explained by Dr Dean R Knight in Vigilance and Restraint in the Common Law of Judicial Review (2018, Cambridge University Press) from p 39.
(d) Mr Keene’s “self-representation”.
[45] Williams J made the same points in different language; see [18]. True, “no particular point of evidence [was] of a contentions nature”; see [13]. More importantly though, everything was.
[46] Mr Illingworth submits the review officer’s decision is free from error because Judge Sharp permitted Mr Keene to appear before her, and that decision would have influenced Mr Keene to appear in the High Court. While this decision might have been influential, this submission confuses liability with culpability. Judge Sharp was not asked to relieve Mr Keene of his ethical duties, and nor could she have been. When determining who may appear before them, Courts exercise inherent power—not a species of disciplinary function.31
[47] In any event, the Judge’s decision was plainly wrong on two bases. First, Mr Keene could not appear for himself—and thus invoke the exception to r 13.5.3— because, as a barrister, Mr Keene could not sue for his own fee. Hence the claim being in Mr Cutting’s name. Second, as observed above, everything was in issue. Again, Williams J made the same points in different language.
[48] Finally, the review officer had little, if any, regard to events before the appeal. She attached no apparent significance to the fact Mr Keene filed the claim knowing a complaint would be made to the Law Society about his performance and fee, said as much in the statement of claim, and therein also asserted—pre-emptively and as fact— there was no basis for any such complaint.
[49] The officer also attached no apparent significance to the fact Mr Lau and Ms Qiu objected to Mr Keene appearing before Judge Sharp on the basis his conduct was in issue, both in relation to obtaining judgment by default and earlier, as their lawyer. In short, the review officer attached no apparent significance to circumstances foreshadowing obvious ethical impediment, from inception, to Mr Keene representing Mr Cutting in the claim for Mr Keene’s fee.
31 See generally Cutting v Liu, above n 16, and Black v Taylor [1993] 3 NZLR 403 (CA) at 417–418.
[50] It follows the review officer erred in law in relation to both determinations. The officer wrongly upheld the standards committee in relation to r 13.5, and wrongly quashed it in relation to r 13.5.3.
Remedy
[51] Mr Illingworth submitted if I reached this conclusion, I should remit the r 13.5.3 determination to the review officer. Remission is common in judicial review, but not invariable. Delay and cost enter the mix. Substitution of the Court’s view for that of the decision maker is permissible when the outcome could not truly be in doubt.32
[52] I decline to remit. No further evidence could be adduced. The case is old. Remission would cause yet more delay, and place additional pressure on an apparently overburdened Legal Complaints Review Officer. Related litigation is now seemingly over; see [22]. Most significantly, the facts disclose obvious infraction of r 13.5.3. Mr Keene should not have appeared on the claim because his conduct was in issue from the outset. And by the time of the appeal to Williams J, that conduct was central. The High Court said so back in 2011.
Orders
[53] Orders:
(a) Each application for judicial review is granted.
(b) Both determinations of the Legal Complaints Review Officer are quashed, so that:
(i) The determination of the Standards Committee in relation to r 13.5.3 stands.
32 Leeder v District Court at Christchurch [2005] NZAR 18 (HC) at [64].
(ii) So too the Standards Committee’s unsatisfactory conduct determination; $1,000 fine; and costs order of the same amount.33
Costs
[54] Mr Keene wished to be heard on costs. I invite his memorandum of not more than five pages by 5 pm, Monday 13 August 2018. Mr Lau may reply with a memorandum of not more than five pages by 5 pm, Monday 20 August 2018. Each is to be served by the same dates.
[55] For completeness, my preliminary view is costs should lie where they fall. The position is very much like it was below—the adverse determinations have been swapped.
...................................
33 The Committee’s fine extended to another adverse determination unrelated to r 13.5 or its sub- rules, which was also quashed by the Legal Complaints Review Officer. But, that officer doubled the fine to $2,000 in relation to the r 13.5 determination. In any event, the penalty is modest.
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URL: http://www.nzlii.org/nz/cases/NZHC/2018/1869.html