TR v YV [2018] NZLCRO 126 (28 November 2018)

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	LCRO 142/2016
CONCERNING	an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING	a determination of [Area] Standards Committee
BETWEEN	TR Applicant
AND	YV _Respondent

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

[1] Ms TR acted for the widow of a deceased. Mr YV acted for a claimant against the estate.

[2] Ms TR made her complaints about Mr YV because she perceived he had not provided his client with competent advice. The correspondence from Ms TR was unequivocally expressed as a complaint by Ms TR rather than a report pursuant to r 2.9 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules).

[3] The [Area] Standards Committee (the Committee), at times, considered itself to be somewhat restricted in pursuing Ms TR’s complaints because Mr YV’s client had not herself lodged a complaint about his conduct. However, a person who has legal knowledge and experience will be in a far better position to recognise the shortcomings of a fellow practitioner and in this regard Ms TR has felt compelled to make this complaint

out of a sense of responsibility to Mr YV’s client (Ms OP) who she does not consider has been well served by Mr YV.

[4] The Committee summarised the background to this matter in the following way:1

VP (“VP”) died in [Country] in [Year]. At the time of his death VP was married to HP (“HP”). OP was VP’s only child and the product of an earlier relationship. VP did not leave a will and his estate (“the estate”) was worth approximately

(b) a [Country] bank account with approximately $83,790 NZD in it; (c) $24,618.45 held in a solicitor’s trust account; and

[6] Mr YV acted for OP and issued proceedings on her behalf against the Estate. When questioned by the presiding Judges at pre-hearing conferences, and at the hearing, Mr YV advised that his client was seeking 90–100 per cent of the Estate, a claim which Ms TR submits, was never going to succeed given HP’s prior claim as the widow of the deceased.

7.	(a) (b)	...Mr YV: was not competent to pursue the claims on behalf of OP; failed to provide appropriate advice regarding OP’s eligibility for
		legal aid;
	(c)	failed to provide appropriate advice regarding the settlement offers advanced;
	(d)	unnecessarily increased the estate’s legal costs and has caused the estate’s value to be diminished;
	(e)	advanced inappropriate and unfounded allegations against HP; and

1 Standards Committee determination, 27 May 2016, at [2]. Citing OP v HP [2015] [citation].

(f) threatened to summons Mr RM’s wife and advanced unsupported allegations that she had disclosed confidential information without a sufficient basis.

[9] The Committee focused on what it considered to be the key issue raised by the complaint which was:3

(a) did Mr YV breach any of his professional obligations in relation to any of the matters raised in the complaint?

9. ...the complaint essentially alleged that Mr YV had failed to adhere to following professional obligations:

(a) to act competently and to protect and promote OP’s interests; (b) to inform OP of [her] eligibility for legal aid;

(f) to obtain OP’s informed instructions on the settlement offers advanced and to properly advise her on the merits of settling and risks of proceeding with her claim.

14. ...OP held significant suspicions in relation to HP’s conduct and...she was not impressed with the settlement offers that were advanced by the estate...

15. In the Standards Committee’s view, any finding that OP was not adequately advised before providing her instructions would essentially be founded on speculation.

[12] Although the Committee had concerns as to the merits of the claims being pursued by Mr YV on his client’s behalf:6

...in the absence of direct judicial criticism or comment that the claims should never have been advanced, a complaint from OP and/or details of the advice OP received and instructions she provided, the Standards Committee was not satisfied it could find that Mr YV had advanced claims no reasonable practitioner could advance.

9.5 Where a client may be eligible for legal aid, a lawyer must inform the client of this and whether or not the lawyer is prepared to work on legally aided matters

[14] Mr YV was not a legal aid provider, but it appeared from Ms OP’s affidavits that she would have qualified for legal aid. However, the Committee accepted that Mr YV had advised her that she was eligible, but that he was not prepared to act on that basis. Nevertheless, Ms OP continued to instruct Mr YV and “In the circumstances, the Standards Committee was satisfied that Mr YV had not breached his professional obligations in relation to the above aspects of the complaint”.7

[15] This issue related to Mr YV’s queries relating to undertakings from Mr RM to hold funds received after the bank accounts in [Country] were closed. The Committee noted “that Mr YV was not bound to accept the proposed undertaking and that [he] could not bind OP to a course of action that was not supported by her instructions”.8

breached his professional obligations in relation to the above aspects of the complaint”.9

[17] Having examined the detailed evidence provided in this regard the Committee was satisfied that Mr YV had acted appropriately. The comments made with regard to HP were made in court documents and made reference to her drawing welfare

_{payments, with an implication she may not have been entitled to them.
“It was also clear}

that OP held significant concerns that HP had provided misleading information in relation to her administration of the estate and has mismanaged the estate funds”.10

was not satisfied that Mr YV had insufficient grounds to advance the claims. Nor did the Standards Committee consider that it had been improper to raise the matters in the context in which they were raised.

[19] Mrs IM was a clinical psychologist who had attended Ms OP. Mr YV speculated that Mrs IM may have imparted clinical information about Ms OP to her husband. The Committee reached the view that Mr YV:12

was putting Mr RM on notice that he may wish to call Mrs IM to provide evidence in the proceedings. The statement was made for a proper purpose and was not an attack.

[20] The Committee did not know the quantum of Mr YV’s fees. The only available evidence was the number of hours expended by Mr YV on the matter and in the absence of a complaint by Ms OP it was difficult to reach a conclusion. The Committee therefore determined to take no further action on this issue.

[21] Having considered all of the issues raised by Ms TR, the Committee determined to take no further action on any of them. Ms TR has applied for this determination to be reviewed.

...thought hard, as to whether this is a matter, which I should seek to have reviewed. The simple reality is that Ms OP was vulnerable, and desperate. Such persons are entitled to receive appropriate and robust advice. They should not be encouraged to pursue matters pointlessly and they are not in a position of equivalency to a legal adviser. They are dependent on their legal adviser. Ms OP was not sophisticated or experienced in matters of law and simply appears to have accepted at face value all that Mr YV has said. Mr YV’s advice was clearly wrong in that:

2. At no time would she have been entitled to the totality of the estate (as submitted by Mr YV to DCJ Courtney).

3. At no time would she have been entitled to 90% of the estate (as submitted at hearing).

4. That the offer made by the widow to share the estate 80/20 was in keeping, with established law.

5. Instead, Ms OP’s share has been diminished by a cost award made against her, and she will ultimately, have to bear the burden of meeting Mr YV’s legal costs.

[23] Ms TR notes that the Committee took some recognition of the fact that Mr YV’s client had instructed him to act as he did and had not herself lodged a complaint. She points to the fact however that a client will act on the advice of her lawyer and there was:

1. A widow (particularly in the instance of a small estate) will always be the primary beneficiary of an estate.

2. An assertion, that a failure to abort a child could never amount to “work” in

3. That Ms OP would have qualified for legal aid, had she made such an application – her advice to Mr YV had been, that she had made enquiries of Community Law as to the availability for legal aid to administer her father’s estate and had been advised that aid would not be available for that purpose. A reasonably competent solicitor would recognise immediately, that legal aid would and is available for someone such as Ms OP (solo mother reliant on a benefit) to issue proceedings under the Family Protection Act and the Law Reform (Testamentary Promises) Act. In this regard, Mr YV of course is not a lawyer able to accept instructions on legal aid, and should have then referred Ms OP to alternative counsel.

4. Had Mr YV done so, then of course the Costs Order which exists against Ms OP and the outrageous quantum of hours and therefore anticipated costs accrued by Mr YV could not exist as a burden to her.

5. What with respect the Committee has failed to appreciate, is that at every turn Ms OP has relied on the advice of Mr YV when in fact a reasonably competent solicitor in that situation would have advised the client quite differently. In particular, as I have already said, a reasonably competent solicitor would have advised:

5.3. In so doing she would have avoided any costs awards and would have ensured that any costs of representation were moderate as opposed to extortionate as anticipated by Mr YV.

5.4. That as the widow had the primary claim, and the estate itself was modest then settlement was appropriate.

[25] In November 2017, this Office sought consent from both parties to complete this review on the material to hand. Ms TR consented, but Mr YV did not, although he had a mistaken view of the nature of an LCRO hearing. He said “the respondent requires this matter to be reviewed by way of public in-person hearing. The applicant for review must make her case and be available for cross examination or argument”.

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.

[27] A review hearing does not proceed in the manner of a court case where the applicant makes her case and provides evidence which is then subject to cross examination. The LCRO regulates his or her procedure in such manner as he or she thinks fit, with as little formality and technicality as is permitted.14

[28] As Mr YV required to be heard in person, the review proceeded as a respondent-only hearing in [City] on 4 October 2018. Ms TR was provided with a copy of the Notice of Hearing but elected not to attend.

[29] The hearing was conducted by Mr Vaughan acting as a delegate duly appointed by the Legal Complaints Review Officer (LCRO) pursuant to cl 6 of sch 3 of the Lawyers and Conveyancers Act 2006 (the Act). The LCRO has delegated Mr Vaughan to report to me and the final determination of this review as set out in this decision is made following a full consideration of all matters by me.

[30] Ms TR was faced with a dilemma. She considered that Mr YV had not provided competent advice to Ms OP who then incurred costs unnecessarily. Ms TR expresses her dilemmas as recorded at [22].

[31] Ms TR would have had the opportunity to observe Ms OP in Court and her observations would have been a factor which led her to forming her views as expressed. However, the Judges before whom matters were argued would have had the same opportunity to observe Ms OP and none of them felt compelled to make any suggestion that she needed independent advice, or commented negatively on Mr YV’s submissions.15

[32] Ms TR has stated in her letter supporting her application for review that no-one had met with Ms OP and “there is no independent evidence that [she] appreciated” the various issues arising in this matter.

[33] Ms TR made her complaint, and has applied for this review, because she considers Mr YV’s advice to Ms OP lacked competence and he failed to advise her to apply for legal aid. As a result, Ms OP has incurred a liability to Mr YV for fees which could have been met by legal aid.

[34] Mr YV is incensed that he has been accused of “extortion” and is critical of

accepted that there is no evidence that Mr YV has in fact rendered a note of costs to Ms OP. There would be no point. She has recovered nothing from the estate. What is known is the hours he says he has recorded.

[36] As noted above, this review was one which could have been completed on the material received by the Committee and this Office on review. However, Mr YV wanted to face his “accuser” and to answer any questions the Review Officer may have had.

[37] A review hearing is not a forum where the parties make and answer allegations. It provides the Review Officer with the opportunity to hear the views of the parties directly and to discuss these with them as well as pursuing issues that need to be clarified. In

15 Judge Flatley “struggle[d] with [Mr YV’s] proposition that Ms OP took her pregnancy to term and gave birth to M simply to secure the TE via testamentary provision”. OP v HP above n 1 at [61].

16 Ms TR refers to an “outrageous quantum of hours” expended by Mr YV on this matter.

this instance, Mr YV had declined to consent to the review being completed on the material to hand, so the hearing proceeded with Mr YV only.

[38] Mr TV is not a legal aid provider and expressed views at the hearing that the legal aid fund is limited and the administrators of the fund endeavour to “choke down” applications to ensure that the cost of the fund does not become excessive. He referred on several occasions to Ms OP’s affidavit where she says she did enquire about the possibility of being granted legal aid but was declined. Mr YV does not consider he has a duty to assess a client’s eligibility for legal aid and/or to refer Ms OP to a legal aid provider to pursue her claims.

[39] Ms TR is critical of several aspects of Mr YV’s conduct. She considers the claims for 90–100 per cent of the Estate to have been unsupportable in the face of the entitlement of the widow pursuant to the Administration Act 1969.

[40] At the review hearing, Mr YV asserted on a number of occasions that HP “had her hand in the till” and hence was depleting the value of the Estate. It is difficult to ascertain how those unproven claims had relevance to the claims by his client but may explain why his client declined to accept settlement offers.

[41] This Office cannot comment on the strength of the proceedings brought by Ms OP and the Committee took some considerable note of the fact that Ms OP herself has not complained about Mr YV. Ms TR’ comments in this regard do however have merit in that Ms OP can only proceed on the basis of the advice provided to her by Mr YV. Ms TR was intimately involved with the proceedings and considers the advice provided by Mr YV lacked competence.

[42] The inherent conflict here is touched on by G E Dal Pont in his text Lawyers’

Lawyer competence, though pivotal to public confidence in the profession and the administration of justice, lacks any generally accepted meaning; it instead takes its flavour from the perspective of the observer. Clients, for instance, often equate competence with outcomes, whereas judges refer to the lawyer’s conduct in relation to the curial process. Lawyers think of competence in terms of technical proficiency, and yet different lawyers do things in different ways, but each may be “competent”. As a result, any purported statement of the indicia of competence must necessarily be phrased in broad terms...

17 GE Dal Pont Lawyers’ Professional Responsibility (6th ed, Thomson Reuters, Sydney, 2017)

[43] Ms TR acted for the opposing party in the proceedings. She cannot be considered to be neutral in her views, notwithstanding her acknowledged expertise. Other than what was presented in Court, there is no direct evidence as to what advice Mr YV gave his client. In the circumstances, it could be considered to be somewhat invasive if a complaints body were to act on the views of opposing counsel and call for the lawyers’ files.

[44] Even if it were to do so, the complaints body is not then able to put itself in the position of assessing the validity of the advice offered. A decision as to whether or not the advice was considered to be ‘competent’ is a decision that can only be made with full knowledge of all of the facts, and an understanding of the client’s views and aspirations. That would require the involvement of Ms OP which is not available in this instance.

[45] Ms TR’s complaints are essentially that Mr YV committed Ms OP to a hopeless case. That issue is addressed by the author of the text Ethics, Professional Responsibility and the Lawyer:18

The courts are reluctant to find that it was inappropriate for an action to be brought. The Privy Council in Harley v McDonald showed this reluctance when it refused to discipline a barrister for taking a hopeless case, stating that:

Then there is the proposition that a barrister who pursues a hopeless case not appreciating it to be hopeless displays such a degree of incompetence as to amount to a serious dereliction of her duty to the court. Their Lordships consider this proposition, without more, to be unsound.

[46] In a footnote, the author refers to rr 2.3, 2.7 and 10 of the Rules by way of example of such additional matters. These rules relate to using the law and legal processes for an improper purpose or lacking in professionalism.

[47] Ms TR’s complaints suggest that Mr YV embarked on these proceedings for the purpose of accruing legal fees. While that may be a conclusion Ms TR holds privately, it is not an allegation that can be sustained without the involvement of Ms OP and that involvement would have to amount to an allegation that Mr YV proceeded independently of instructions for the purpose of increasing fees.

[48] That evidence to support a finding against Mr YV is not available and this is not a situation where the Committee should investigate further on the basis of a complaint by opposing counsel.

18 Duncan Webb, Kathryn Dalziel and Kerry Cook Ethics, Professional Responsibility and the

[49] Mr YV is not a legal aid provider. Ms TR is certain that Ms OP would have qualified for legal aid.

Where a client may be eligible for legal aid, a lawyer must inform the client of this and whether or not the lawyer is prepared to work on legally aided matters

[51] Mr YV refers to the affidavit of Ms OP dated 23 July 2014, where she says she was familiar with the legal aid regime and had been told by another lawyer in relation to other court proceedings that she was eligible. She swears that she spoke to a lawyer at a Community Law Centre who said “he doubted that [she] would be entitled to legal aid because this was an estate matter”. Ms OP received similar responses to further enquiries at the [Area] office of the Legal Services Agency and the regional centre in [Region].

[52] Ms OP swears she knew Mr YV was not a legal aid provider as she had been dealing with him on other matters. She says:

31. He was aware of my circumstances. I was not in a position to pay him except if I ever got anything from my father’s estate. He reminded me that he was not a registered provider under the legal-aid regime.

32. I told my lawyer that I had already established that I was not eligible for legal aid.

[53] Ms TR says that Ms OP’s enquiries about legal aid were misdirected. Legal aid is not available to administer an estate but Ms TR is adamant that Ms OP would have qualified for legal aid for the proceedings brought by her pursuant to the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949.

[54] Toogood J disregarded Ms TR’s submissions at the hearing relating to costs on an interlocutory matter that Ms OP should have applied for legal aid. He passed no comment on the number of hours Mr YV said he had expended on the proceedings and whether any fee charge was reasonable. He said they were “matters between [Ms OP] and her counsel”.19

[55] The issue is whether the complaints process should concern itself in the matter when neither the Courts or the client has.

[56] This raises similar issues to those referred to above.20 In the first instance, what advice did Mr YV give to Ms OP and did she exercise her right to continue to instruct Mr YV notwithstanding the correctness or otherwise of that advice? A complaints body

is faced with a decision as to whether it should call for the lawyer’s file to try to ascertain what advice was provided and then to determine the correctness of that advice. To get to that stage and then proceed beyond that, must require the involvement of the lawyer’s client. That is not available.

[57] In the circumstances, the Committee’s determination to take no further action

[58] In her letter supporting the review application, Ms TR included brief comments with regard to her allegations that Mr YV had not treated other lawyers with respect and courtesy, and had attacked the reputations of HP and Mrs IM inappropriately. She says that the Committee had “missed the point” in that the evidence that HP or Mrs IM could have provided could not have played any part in the proceedings as lodged. Ms TR has the view that the proposal to call these women as witnesses was “so patently unprofessional and improper that the Standards Committee should have acted thereon”.

[59] The view of what constitutes incompetence as expressed by G E Dal Pont set out above, is relevant here, in that different lawyers will do things in different ways.21

Ms TR’s views differed from those of Mr YV. The possibility of calling the women as witnesses was a matter to be resolved before the Court and the Committee’s determination to take no further action on this matter was the appropriate decision.

[60] The complaint about failing to treat other lawyers with respect and courtesy related to the issue as to whether or not Mr YV would accept Mr RM’s undertakings with regard to obtaining the funds from [Country]. The Committee noted that Mr YV was not obliged to accept Mr RM’s undertaking and there was insufficient evidence to support this complaint. The proposition that a lawyer’s conduct is considered to be unsatisfactory conduct in terms of the Act and/or Rules if he/she declines to accept another lawyer’s undertaking is not a proposition that should be advanced, and in the circumstances, the determination of the Committee to take no further action on this issue was, again, the appropriate determination.

[61] Ms TR’ complaints and her application for review raise the issue as to how far a disciplinary body should act on a complaint by opposing counsel, and investigate advice provided by a lawyer to his or her client when the client him or herself is not part

of the complaint. The Standards Committee determination to take no further action on the complaints was largely based on the fact that Mr YV was acting on Ms OP’s instructions and there was no evidence to support Ms TR’s allegations.

[62] There is no reason to modify any of the Standards Committee reasons and pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006 the determination of the Standards Committee to take no further action in respect of Ms TR’s complaints is confirmed for the reasons expressed by the Committee and the additional reasons provided in this decision.

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

New Zealand Legal Complaints Review Officer

TR v YV [2018] NZLCRO 126 (28 November 2018)