LC v BD [2018] NZLCRO 120 (22 November 2018)

Last Updated: 2 December 2018

	LCRO 194/2016
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
BETWEEN	LC Applicant
AND	BD Respondent

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

DECISION

Introduction

[1] On [Date] Mr LC applied for a review of a decision by the [Area] Standards Committee (the Committee) made on [Date]. The Committee concluded that the length of time that had elapsed between two aspects of Mr LC’s complaint and the date of his complaint to the New Zealand Law Society (NZLS) made it impractical or undesirable for the Committee to take action on those allegations, and that it was otherwise not necessary or appropriate to take further action in respect of other conduct alleged on the part of Mr BD.

[2] On [Date] Mr BD was suspended from practice for 18 months in respect of matters unrelated to Mr LC’s complaints. Mr BD’s suspension was a matter of concern to Mr LC. However, the suspension occurred after Mr LC had made his complaint, after the date on which the Committee determined his complaint and after Mr LC filed his application for review. Except to the extent that it could possibly be relevant to any consequential orders that that might follow this review, Mr BD’s suspension is immaterial.

Background

[3] Mr BD acted for Mr LC in different matters from 2009 onwards including providing advice on employment and the prospects of recovering professional fees for Mr LC who is a quantity surveyor. Mr LC feels that he has a considerable investment in his professional relationship with Mr BD. Although he does not really want to seek legal advice elsewhere and does not see why he should have to pay someone else to pick up where Mr BD left off, Mr LC is not entirely satisfied with the Mr BD’s conduct or the services he provided.

[4] The first matter Mr BD assisted Mr LC with was an employment dispute. Mediation was scheduled some time in 2009 or 2010. Mr BD arrived late. Mr LC considers Mr BD’s tardiness affected what followed in the mediation, and thwarted Mr LC’s efforts to achieve a good result.

[5] Some time later, Mr LC says Mr BD overlooked filing some papers in relation to an ACC matter, which Mr LC considers stymied his efforts to further his ACC claim.

[6] In a matter that may have still been active about the time Mr LC made his complaint to NZLS, he had a disagreement with Mr BD about what seems to have been proposed debt recovery proceedings and possible costs orders.

[7] There is also the ongoing matter of Mr LC’s estate and how that will be divided amongst his children under what he considers is likely to be a series of updates to his will.

[8] Mr LC also says Mr BD increased his fees without letting him know.

[9] Mr LC says that Mr BD replied to the concerns he had raised, then stopped corresponding with him. It seems to have been Mr BD’s refusal to be drawn into further correspondence that prompted Mr LC to make a complaint. Mr LC had not expected to have to instruct new lawyers, but was too disappointed in Mr BD to seek his assistance again. He envisaged additional cost, delay and risk in going elsewhere. Seemingly unsure where else to turn, Mr LC lodged a complaint with the NZLS.

Mr BD’s Reply

[10] Mr BD responded to Mr LC’s complaint saying that the mediation and ACC matters were too long ago for him to recall the detail. Mr LC provided too little information for him to be able to respond to the complaint about costs. In respect of his fees, Mr BD

says Mr LC paid them without demur at the time and it is too late to raise those matters now. Mr BD claimed prejudice by delay and denied any wrongdoing.

The Decision

[11] As mentioned above, the Committee concluded that the length of time that had elapsed between the mediation and ACC matters and the date of Mr LC’s complaint made it impractical or undesirable to take action on those allegations. The Committee did not consider that the other conduct described by Mr LC warranted a disciplinary response, and determined the complaint pursuant to s 138(1)(a) and (2) of the Lawyers and Conveyancers Act 2006 (the Act).

[12] Mr LC does not accept those outcomes and applied for a review.

Application for review

[13] In his application for review Mr LC says he wants:

1. Mediation;
   
2. Documents presented for examination that Mr BD advises he has ([Mr LC does] not appear to have them);
   
3. Time to travel overseas to obtain evidence;
   
4. Pay only the fees envisaged and constant as expected;
   
5. Time to gather local evidence as well.
   

[14] Mr BD said he had nothing to add to his submission to the Committee.

[15] After Mr LC had filed his application for review he became aware that Mr BD had been suspended from practice and wrote to him saying he was aware of the suspension and that Mr BD could no longer act for him. Mr LC wanted to know what plans Mr BD had in place to ensure Mr LC was not disadvantaged, whether he had insurance and if he was willing to offer Mr LC an apology.

[16] Mr BD asked this Office to intervene and stop Mr LC “harassing” him.

[17] As Mr BD’s correspondence did not assist in the disposal of this review it was not sent on to Mr LC.

Review Hearing

[18] Mr LC attended a review hearing in Auckland on 15 November 2018 with a support person. Mr BD was not required to attend and did not exercise his right to do so.

Nature and scope of review

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

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

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

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

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

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

Discussion

[21] By the time Mr LC reached the review hearing he had obtained his file from Mr BD’s office, and read up on the processes of complaint and review under the Act. His general position is that the Committee did not enquire but should have, and this Office should therefore direct his complaint back to a Committee for reconsideration. Mr LC also expressed concern over the Committee’s independence, given its members are

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

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

drawn from the area in which Mr BD had been practicing and would have been composed of colleagues who were personally familiar with him. It was explained to Mr LC at the review hearing that, although not all complaints return to the location of the practitioner concerned, they often do.

[22] The Committee requested further information from Mr LC in support of his complaint. Beyond receiving that, and Mr BD’s somewhat vague response, it did not inquire further. The main difficulty faced by the Committee was that Mr LC’s complaint was not specific enough to provide solid grounds on which to say that standards issues arose.

[23] The underlying theme of Mr LC’s complaint is that by entering into a professional relationship as lawyer and client, Mr BD had committed irrevocably to always providing Mr LC with legal services, and that Mr LC should not be disadvantaged in any way by Mr BD not acting. That is a somewhat unusual way to conceive of a lawyer client relationship. A client does not have to be unhappy with the service a lawyer provides to be able to terminate a retainer. Clients can instruct whomsoever they choose. There is no expectation that a lawyer is to refund all the money a dissatisfied client has paid for work done on the termination of a retainer; nor is a lawyer professionally obliged to fund a client’s change of lawyer.

[24] The fact that Mr BD was suspended certainly prevented him from acting while suspended. However, Mr BD’s suspension gives rise to no expectation that he should pay Mr LC compensation, provide an apology or refund monies paid for work previously completed.

[25] Assuming it is correct that Mr BD was late for a mediation, without more, that does not constitute grounds for a professional standards issue. The criticism Mr LC makes is that Mr BD’s late arrival robbed him of a successful mediated outcome. There are so many uncertainties associated with that proposition, most of which will be impossible to resolve at this late stage, that further action would be impractical. If Mr LC had been concerned at the time, he should and could have aired his concerns far sooner.

[26] Mr LC says Mr BD was prevented by his own delay from filing some papers in an ACC matter. What seems to have affronted Mr LC the most, to the point he reenacted the scene at the review hearing, is the way that the envelope containing the papers Mr LC had wanted Mr BD to file fell out of his file and onto the floor.

[27] The underlying concern appears to be that Mr BD maintained a disorderly file. It is the case that lawyers must administer their practices in a manner that ensures they adhere to their duties, including duties owed to clients. While it is always preferable to maintain orderly files, messy files do not necessarily constitute a professional standards issue. The focus has to be on whether a duty is breached.

[28] If Mr LC had instructed Mr BD to file papers with ACC, Mr BD should have done that before the deadline passed. However, it seems those events occurred quite some time ago, with no complaint being made by on Mr LC at the time. It is not accepted, as Mr LC suggests, that making a complaint to a professional body is such a nerve wracking experience that it was too much for him to contemplate. While it is accepted that Mr LC is not happy about the service he received, there is no sufficiently compelling reason to delve into events that are said to have occurred quite some time ago.

[29] Mr LC is critical of Mr BD for not having pursued or secured an order for costs in Mr LC’s favour. Mr BD’s best guess in reply was that Mr LC was referring to a debt Mr LC wanted to recover, but which Mr BD advised lacked a proper basis on which to base a claim. Mr LC would never have been entitled to Court ordered costs without first having made a claim. Even assuming Mr LC had made a claim, and that had been successful, costs do not always follow the event. Without more, that allegation does not constitute a proper basis for a professional standards complaint.

[30] Mr LC says Mr BD increased his fees without letting him know in advance. Mr BD says his hourly rate changed between 2010 and 2014.

[31] There is no evidence of Mr BD sending Mr LC terms of engagement or of Mr BD updating those with his new hourly rates. Mr BD says that Mr LC paid the increased hourly rate at the time without demur.

[32] If Mr BD did not provide terms of engagement or did not update them with his new hourly rate, he should have. A failure in either case constitutes a contravention of rr 3.4 and 3.6 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, but without Mr BD’s records, there is not enough of an evidential basis to make a finding.

[33] Mr LC considers a full investigation is warranted; that is his second ground of review. Mr BD also wants this Office to direct the parties to attend mediation, presumably so Mr LC can persuade Mr BD to fund the transition of his instructions to another lawyer. There is no basis on which this Office could support that. Clients routinely change

lawyers. Clients are entitled to the contents of their files. Mr LC has that. He is free to instruct someone new. There is no reason Mr BD should assist him in funding that work.

[34] There is no basis for the suggestion that Mr LC should be given time to travel overseas to obtain evidence or to gather local evidence locally. In respect of some of the matters Mr LC refers to, he has had several years to collect together information that relates to his complaints. If it is not available now, it is not likely that it will be revealed with more time. Mr LC says he has Mr BD’s file so it is not at all clear that Mr LC might be able to obtain any other relevant evidence locally or overseas.

[35] Mr LC says he paid for Mr BD’s services as he went along. In his review application Mr LC says he only wants to pay the fees he envisaged at the hourly rate Mr BD first advised him of. This part of Mr LC’s application for review is based on the premise that Mr BD cannot charge an increased hourly rate he did not give notice of. The difficulty is that there is no evidence of what Mr LC was charged or what he paid. If Mr BD did not provide Mr LC with invoices at or about the time he provided services, Mr BD should have. However, it is reasonable to assume, although none has been provided, that Mr LC has some evidence that he made payments to Mr BD.

[36] Although it cannot be said with absolute certainty that Mr BD’s conduct met or exceeded a proper professional standard, the issues Mr LC complains of are not amongst the most serious of their kind.

[37] In two cases the conduct that was the subject of complaint was said to have occurred several years earlier without complaint being made. Although there is no limitation period, evidentially the matters are now stale. The other issues Mr LC raises are vague and lacking evidential support.

[38] It is accepted that there may be more information that could be considered by a Committee and that the Committee could have gone further in investigating Mr LC’s concerns. However, Mr LC did not give the Committee a great deal to go on, and parties should not be encouraged to use the process of review as a second chance to build a better case.

[39] It is sometimes the case that complaints should properly be directed back to Committees for reconsideration. After carefully considering all of the materials available on review, which include Mr LC’s comments at the review hearing and his misgivings about Mr BD’s reply to his complaint, there is no good reason to find that this is one of those occasions.

[40] There is no justifiable basis on which to modify or reverse the Committee’s decision. That is confirmed.

Decision

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

DATED this 22nd day of November 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:

Mr LC as the Applicant Mr BD as the Respondent

[Area] Standards Committee New Zealand Law Society