GX v BK (deceased) [2018] NZLCRO 108 (29 October 2018)

Last Updated: 29 November 2018

	LCRO 26/2016
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	GX Applicant
AND	BK (Deceased) Respondent

DECISION

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

Introduction

[1] Ms GX has applied for a review of a decision by the [Area] Standards Committee [X] (the Committee) to take no further action in respect of her complaint about Mr BK.

Background

[2] Mr BK acted for Ms GX after her mother passed away and her will came into effect. Ms GX and her sister were both appointed as executrices together with an independent lawyer. The independent lawyer passed away. Acknowledging there would be difficulties if the estate administration were to be carried out only by the sisters, Ms GX sought advice from Mr BK on the way ahead.

[3] Ms GX was generally dissatisfied with Mr BK’s involvement and wanted part of the fees she had paid him in advance refunded. Ms GX made a complaint to the New Zealand Law Society (NZLS) accordingly.

[4] Mr BK responded to Ms GX’s complaint on the basis that it was no more than a fee complaint.

[5] The Committee dealt with Ms GX’s complaint on the basis that it primarily related to fees and concluded there was no basis on which to make a determination that was adverse to Mr BK.

[6] Ms GX firmly disagrees with that outcome, so she filed an application for review in February 2016 and wanted to be heard in support of her review application.

[7] Mr BK indicated he had nothing further to add to the materials he had provided to the Committee and the matter was queued for an applicant only hearing in July 2016. The Registry advised the parties that there were considerable delays in progressing to review hearings.

[8] In November 2016, Ms GX objected to the direction that the hearing be applicant only, and considered Mr BK should be required to appear before the Legal Complaints Review Officer (LCRO) and respond to the allegations she had made about his conduct and service, as well as his fees. Among Ms GX’s many concerns were the fact that Mr BK had appeared in Court for her and had the audacity to also enter an appearance for the Estate’s solicitors to obtain timetabling orders by consent, without her instructions and at her cost. Ms GX says Mr BK wrote [City1] instead of [City2] in Court documents, shouted at her in front of other people in High Court Chambers before the hearing commenced, and lied to the Coroner’s office in correspondence requesting a coroner’s report on her behalf when she had not instructed him to and she knew there was no such report. Ms GX believes Mr BK contravened a great many of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 and was incompetent.

[9] The review hearing remained on track to proceed as applicant only and preparations were made to schedule a hearing.

[10] On 9 August 2018, Mr BK advised that he had not renewed his practicing certificate and would not be attending the review hearing. The Registry advised Ms GX that a hearing would proceed in [City2] on 25 October 2018 and that Mr BK had advised he would not be attending.

[11] Mr BK passed away before the review hearing which proceeded on 25 October 2018.

[12] Ms GX took a day off work to attend the review hearing. It was explained to her at the start of the hearing that Mr BK had passed away and the circumstances prevented this Office from exercising its functions in a manner that was consistent with natural justice. The point being that, even if there had been conduct on the part of Mr BK that warranted a disciplinary response, which is not accepted, this Office could make no finding adverse to Mr BK without him having the opportunity to comment.

[13] Ms GX was disappointed that she could not obtain a refund or compensation from Mr BK because no unsatisfactory conduct finding could be made, and so there can be no statutory basis on which to make orders on review pursuant to s 156 of the Act. Nonetheless, Ms GX took the opportunity to air her grievances.

[14] Having listened carefully to Ms GX’s concerns, I am not satisfied that her complaints have merit in the sense that Mr BK’s conduct can be said to have fallen below a proper professional standard. The only professional standards issue that might possibly arise from the materials is the allegation that he shouted at her. The bare allegation is insufficient to support an adverse conduct finding on the balance of probabilities.

[15] None of the other matters Ms GX raises are problematic in the context of the services Mr BK was providing to Ms GX. Lawyers routinely enter appearances for other counsel where interlocutory orders, such as timetabling, are sought by consent. There is no proper basis on which to suggest that came at an added cost to Ms GX.

[16] The focus of inquiry by this Office is on the lawyer whose conduct, service or fees are the subject of the complaint that gave rise to the Committee’s decision that is under review. Without Mr BK, it is impossible to progress this review further and it would be inappropriate to do so.

[17] Pursuant to s 205 of the Act, I decline to make any further inquiry into the complaint.

[18] Consequently, the Committee’s decision is confirmed.

[19] Ms GX also requested a refund of the $50 filing fee she paid when applying for review. As it is not clear that the Act provides a statutory basis for such an order, that request is declined.

Decision

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

DATED this 29TH day of October 2018

D Thresher

Legal Complaints Review Officer

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

Ms GX as the Applicant

Mr BK (Deceased) as the Respondent [Area] Standards Committee [X]

New Zealand Law Society