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BA v FE [2018] NZLCRO 30 (6 April 2018)

Last Updated: 17 May 2018


LCRO 85/2016

CONCERNING
an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND

CONCERNING
a determination of the [City] Standards Committee [X]

BETWEEN
BA

Applicant

AND
FE

Respondent

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


DECISION

Introduction


[1] Miss BA has applied to review a decision of the [City] Standards Committee [X] (the Committee), in which the Committee determined to take no further action on her complaint against her former lawyer, Mr FE.
[2] The Committee based its decision upon s 138(2) of the Lawyers and Conveyancers Act 2006 (the Act), which allows a Committee to take no further action on a complaint if it considers that it is neither necessary nor appropriate to do so.

Background


[3] Miss BA instructed Mr FE in April 2015, to act for her in connection with her separation from her husband, Dr JI.
[4] Miss BA is originally from [Country], although at the time she instructed Mr FE she had lived in New Zealand for approximately 20 years, 15 of which included her practising as a dentist.

[5] There were two parts to Miss BA’s instructions to Mr FE. First, she wanted Mr FE to apply to the Family Court to obtain a separation order. Secondly, she wanted him to act in connection with relationship property issues.
[6] Although Mr FE obtained a separation order for Miss BA, he and Miss BA disagreed about the way to progress the relationship property issues.
[7] Their retainer came to an end in late August 2015. It lasted between four and five months.

Complaint and response


[8] Miss BA lodged a complaint with the New Zealand Law Society Lawyers Complaints Service (Complaints Service) on or about 5 February 2016. Attached to her complaint was a copy of Mr FE’s terms of engagement dated 21 April 2015 and signed by Miss BA, as well as copies of invoices from Mr FE and some time records.
[9] In her complaint, Miss BA said the following:

[10] Adding to her complaint, in an email to the Complaints Service dated 15 February 2016, Miss BA said that on “more than one occasion [she] felt very uncomfortable with [Mr FE] [and] the way he greets [her]”. She described Mr FE putting his arm around her shoulder whilst shaking her hand. This made her feel uncomfortable and she found it unprofessional.
[11] Miss BA also said that on one occasion when Mr FE was certifying some documents for her, he looked at a photograph of her and said, “can I tell you something, you are more beautiful than before”. She found this “very unpleasant and intruding”.

Response by Mr FE


[12] On 15 February 2016, the Complaints Service wrote to Mr FE informing him that it had received Miss BA’s complaint. It attached the complaint to that letter, as well, it would seem, as Miss BA’s email to the Complaints Service dated 15 February 2016.
[13] The letter referred Mr FE to s 161 of the Act, which prevents a lawyer from taking action to recover fees that are the subject of a complaint. The letter concluded by informing Mr FE that he would be “notified in due course concerning the procedures the Standards Committee intends to follow”.
[14] Miss BA’s complaint was then apparently dealt with by the Complaints Service’s Early Resolution Service (ERS).
[15] The process adopted by the ERS generally involves the Committee making an initial assessment of a complaint and forming a preliminary view about it. If the Committee’s preliminary view is to take no further action on the complaint, a Legal Standards Officer (LSO) telephones the lawyer concerned, outlines the complaint and informs the lawyer of the Committee’s preliminary view about it.
[16] During that telephone discussion, the LSO will ask the lawyer whether they wish to make any response to the complaint. Any response is noted for the Committee to take into account.
[17] On 2 March 2016, there was a telephone discussion between the LSO and Mr FE in connection with Miss BA’s complaint. During that discussion Mr FE denied the conduct issues and said that he did not wish to respond further.

[18] Those comments were recorded in a typewritten file note prepared by the LSO, as follows:

[H]e denied the conduct issues. Informed him preliminary view NFA and reasons, offered opportunity to respond – he content not to respond.


[19] This file note formed part of the material before and ultimately considered by the Committee.

Standards Committee decision


[20] The Committee conducted its hearing on the papers, and delivered its decision on 9 March 2016.
[21] The Committee identified the following issues of complaint by Miss BA:

Fees


[22] The Committee referred to the fees factors set out in r 9.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) and in particular, the following factors:1
[23] The Committee noted that Mr FE’s terms of engagement did not provide an estimate which, in the Committee’s view, was “not unusual in relationship property matters as the fee is dependent on how easily the parties can reach agreement”.2
[24] The Committee looked at the fee narrations on Mr FE’s invoices and the attached time records, and concluded that the fees charged were “fair and reasonable for the work undertaken by Mr FE”.3

1 Standards Committee determination, 9 March 2016 at [4].

2 At [5].


[25] In coming to that conclusion, the Committee said that it had regard to the fee factors it had earlier identified.

Respect and courtesy


[26] The Committee summarised Miss BA’s complaint under this heading as being an allegation that “Mr FE made comments which were offensive to her and behaved in a way that made her feel uncomfortable”.4
[27] The Committee then said that “[o]n enquiry, Mr FE says that he did not make any comments that could be construed as offensive and did not behave in the way described by Miss BA”.5
[28] As indicated above, Mr FE did not provide a formal written response to Miss BA’s complaint. He was contacted by telephone by a LSO, whose file note of that discussion records that Mr FE “denied the conduct issues”.
[29] It would appear that the Committee inferred from the file note that Mr FE’s denial of the conduct issues amounted to him saying that he had not made “any comments that could be construed as offensive and did not behave in the way alleged”.
[30] The Committee observed that in order to take further action it must “determine that Mr FE was in breach of a rule governing his professional obligations”.6
[31] The Committee noted that neither Miss BA’s nor Mr FE’s views could be corroborated, in which case "it [was] not possible for the complaint to be resolved or taken any further".7

Application for review


[32] Miss BA filed her application for review on 20 April 2016. She identified the following matters that she disagreed with in the Committee’s determination:

3 At [6].

4 At [7].

5 At [7].

6 At [8].

7 At [9].


(b) Mr FE wasted time for which she was charged, by “criticising [her] background”. This was despite the fact that Miss BA is a graduate in dentistry from the University of Otago and had been working in Auckland for over 15 years, including running her own business for 11 years.
(c) Miss BA “felt sexually harassed” by Mr FE. In particular on Saturday 9 May 2015, whilst certifying documents for Miss BA, Mr FE said, “you look more beautiful now than in the photo”. He also asked her what she would be doing that evening. She replied that she would be with her daughters. She felt uncomfortable and scared, and could not wait to leave. There was only one other lawyer in the office and she was surprised that Mr FE wanted to see her on a Saturday.
(d) Furthermore, Miss BA felt uncomfortable with the way that Mr FE put his arm around her when greeting her.

Response by Mr FE


[33] In a letter to this Office dated 27 May 2016, Mr FE responded to the application for review as follows:

Fees


(a) He was instructed to act for Miss BA in April 2015 in relation to separation and relationship property issues.
(b) Mr FE provided Miss BA with his standard terms of engagement, which recorded his and his colleague’s hourly rates of $395 plus GST.
(c) Mr FE noted that he has been in practice for over 43 years specialising in family law matters, particularly relationship property disputes.
(d) Invoices were rendered to Miss BA during the retainer and these had itemised computer timesheets attached to them. The dates and net amounts of the invoices were:

(e) Mr FE considers that his fees were in accordance with the time properly charged. No uplift was included. The issues were not complex, but Miss BA’s “intransigent attitude” made matters difficult.
(f) Mr FE denies ever speaking inappropriately to Miss BA. From time to time he spoke to her firmly about practicalities. He did not waste time.
(g) When Miss BA terminated the retainer, the relationship property issues had not been resolved. However, a separation order had been made by consent in the Family Court.

Respect and courtesy


(h) Mr FE denies that he acted improperly and disrespectfully towards Miss BA.
(i) He is concerned that Miss BA’s allegations under this head of complaint have “evolved”. This makes responding to this issue of complaint, difficult.
(j) In particular, Mr FE emphatically denies criticising Miss BA personally or in relation to her ethnic or cultural background. He points to the fact that he has middle eastern heritage (his mother was [Middle Eastern]
(k) Mr FE denies commenting that Miss BA was “more beautiful than before”. He denies touching any part of her inappropriately and said that as with all clients he greeted her in his office reception area with a handshake.
(l) Mr FE met Miss BA at his office on Saturday 9 May 2015. He arranges Saturday meetings from time to time to assist clients who are unable to attend meetings during normal working hours. This was the case with Miss BA as she was engaged in a busy dental practice.
(m) He may innocently have asked Miss BA what she was doing that weekend, in the same way that he would ask (for example) a male client whether they would be watching sport.

(n) Mr FE is offended at the suggestion that he acted inappropriately towards Miss BA at any time. He considers that Miss BA is motivated in making her complaint by a desire to avoid paying outstanding legal fees.

Further comment by Miss BA


[34] In a letter to this Office dated 20 June 2016, Miss BA commented on Mr FE’s submissions. The points that Miss BA emphasises are:

Response from Mr FE


[35] In his letter to this Office, dated 13 July 2016, Mr FE responded to the matters raised by Miss BA in her letter of 20 June 2016.
[36] Mr FE acknowledged that he strongly recommended to Miss BA, on several occasions, that she, Dr JI and the lawyers should have a round table meeting to try and resolve matters. Mr FE said that in his experience such meetings are often productive.
[37] Mr FE obtained judgment against Miss BA for outstanding fees. Bankruptcy proceedings were then initiated, however Miss BA subsequently paid all outstanding fees. Mr FE did not notify any credit agencies of the default.

Further comment by Miss BA


[38] In a further letter to this Office dated 26 July 2016, Miss BA emphasised that she was clear about telling Mr FE that she did not accept his advice to have a round- table meeting.
[39] Miss BA repeated that “on many occasions” Mr FE was critical of the way she thought. She said that he related that to her country of origin, in an unpleasant way.
[40] Miss BA considers that Mr FE’s actions in issuing proceedings in the District Court were oppressive and designed to damage her reputation.
[41] As a single parent with three children, Miss BA felt under extreme pressure due to the circumstances of her separation and the way in which Mr FE handled the legal side of that.
[42] Miss BA accepts that Mr FE may not have personally notified credit agencies about her debt, but he would have known that in obtaining judgment against her by default, credit agencies would become aware of the judgment and that this would affect her credit rating.

[43] To the request for compensation of $10,000, Miss BA adds her wish for an apology from Mr FE for his unprofessional behaviour. She also asks for a letter from Mr FE to the credit agency “acknowledging my full payment for all the fees”.

Final comment by Mr FE


[44] On behalf of Mr FE and in his absence, Mr HG responded to Miss BA’s letter dated 28 July 2016, in an email to this Office dated 8 August 2016.
[45] Nothing fresh was raised by Mr HG on behalf of Mr FE, other than to indicate that Mr FE remained willing to consider writing a letter to the credit agency, along the lines suggested by Miss BA.

Nature and scope of review


[46] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:8

... 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.


[47] More recently, the High Court has described a review by this Office in the following way:9

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.

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

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


[48] 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:

Statutory delegation and hearing in person


[49] As the Officer with responsibility for deciding this application for review, I appointed Mr Robert Hesketh as my statutory delegate to assist me in that task.10 As part of that delegation, on 19 March 2018 at Auckland, Mr Hesketh conducted a hearing at which Miss BA appeared, as well as Mr FE together with Mr HG.

[50] The process by which a Review Officer may delegate functions and powers to a duly appointed delegate was explained to the parties by Mr Hesketh. They indicated that they understood that process and took no issue with it.

[51] Mr Hesketh has reported to me about that hearing and we have conferred about the complaint, the application for review and my decision. There are no additional issues or questions in my mind that necessitate any further submissions from either party.

Analysis


Preliminary:

Standards Committee process


[52] As described above, the Complaints Service initially dealt with Miss BA’s complaint through its ERS procedure.
[53] One of the difficulties that this has given rise to is that Mr FE was not asked to provide a substantive written response to Miss BA’s complaint.
[54] The Committee’s file records that the complaint and Miss BA’s follow-up email were both forwarded to Mr FE by the Complaints Service. In the covering letter, he was informed about the provisions of s 161 of the Act and advised that there would be further contact outlining the Committee’s processes.

10 Lawyers and Conveyancers Act 2006, sch 3, cl 6.


[55] Mr FE agrees that he did not provide a substantive written response to Miss BA’s complaint. No criticism whatsoever can attach to Mr FE in that regard. It was understandable, on being advised that the Committee had determined that the matter would go no further, that he would not consider it necessary to respond to the complaint.
[56] What next followed is set out in a brief typewritten file note. It simply records that on 2 March 2016 Mr FE was telephoned by a Legal Standards Officer (LSO) from the Complaints Service. The file note reads “he denied the conduct issues”.
[57] Mr FE has no recollection of that telephone call.

[58] Whether, in that discussion on 2 March 2016, Mr FE went further and provided more information beyond a simple denial, we can never know. It presents as unlikely that Mr FE would simply say that he denied the conduct issues. It is more likely that he would have provided further explanation.
[59] In its decision, the Committee said that “on enquiry, Mr FE says that he did not make any comments that could be construed as offensive and did not behave in the way described by Miss BA”.11
[60] This is at odds with the LSO’s file note. There is nothing else on the Committee’s file to corroborate its description of Mr FE’s verbal response to the complaint.
[61] It may be that Mr FE used the words recorded in the Committee’s decision when he spoke to the LSO, and the LSO verbally passed that on to the Committee.
[62] This conflict between the LSO’s file note and the Committee’s description of Mr FE’s explanation is unfortunate and has led to some confusion during the review process. For example, some weeks prior to the hearing Mr HG wrote to this Office asking for a copy of Mr FE’s response to the complaint. He did so based upon the Committee’s description of that response in its decision.
[63] Some time was also spent in this Office endeavouring to reconcile the conflict.

[64] I suggest that in future a careful and detailed written note is taken of all discussions that the Complaints Service has with parties to a complaint. If a Standards Committee needs to refer to the content of such discussion in its decision, then it must

11 Standards Committee determination, above n 1, at [7].

accurately quote what was said. This approach would avoid the type of confusion that arose in this case.

Additional facts


[65] At the hearing before Mr Hesketh, additional background facts emerged which assume some relevance when looking, for example, at the issue of fees.
[66] At the time Miss BA instructed Mr FE, she and Dr JI were still living in the same house, although largely leading separate lives. Their children were all adults. Miss BA had initiated the separation. Dr JI did not want the couple to separate.
[67] The couple owned their house.

[68] Miss BA ran (and still runs) her own practice as a dentist, and did so from a building that she and Dr JI owned together (and not through the vehicle of a company or a trust). Her dental practice operated under a company structure and the company paid rent to her and Dr JI.
[69] Dr JI was at the time, an employee in a medical practice.

[70] The couple did not own other assets of significance.

[71] It was agreed at the hearing that the legal issues were not entirely straightforward, largely because of disagreement about valuations. The legal issues did not, however include the additional factors of a family trust, or matters of that nature.
[72] Initially Dr JI was legally represented, however he subsequently elected to represent himself.
[73] Matters dragged as a result of Dr JI’s response to Miss BA’s wish to separate, obtain a separation order through the Family Court and settle issues of property.
[74] As well as that, there was a fundamental disagreement between Mr FE and Miss BA as to the most effective strategy for finalising the couple’s relationship property dispute. Mr FE consistently advised Miss BA to attend a round-table meeting with Dr JI and his lawyer (or, simply Dr JI after he had terminated his retainer with his lawyer). Miss BA was resolutely opposed to this course.

Substantive issues:


[75] There are two distinct aspects to Miss BA’s complaint against Mr FE: the fees he charged and his unprofessional treatment of her.
[76] There is some crossover between the two areas of complaint. Miss BA objects to paying legal fees for time spent when, she says, Mr FE was either talking about himself or criticising her.

Fees:


[77] In their submissions before Mr Hesketh, both Mr HG and Mr FE said that the Committee had Mr FE’s files before it when it considered Miss BA’s complaint. They based this submission on the Committee’s description of the material that it took into account in reaching its decision. This included Mr FE’s terms of engagement, time records and fee narrations.
[78] However, it is clear that the Committee did not have Mr FE’s file before it. There is no record on the Committee’s file of it having requested Mr FE’s file, nor of any correspondence from Mr FE attaching a copy of it. Indeed, there is no correspondence whatsoever from Mr FE to the Complaints Service.
[79] This Office has a copy of most of Mr FE’s file. It was sent by Mr FE’s office by courier on or about 27 May 2016.12
[80] I mention this because a significant aspect of Mr FE’s argument on review was that the Committee’s conclusions about his fees were reached following a consideration of his file. As indicated, the Committee did not have Mr FE’s file.
[81] It is correct that the Committee had a copy of Mr FE’s terms of engagement, invoices and time records. These were provided by Miss BA when she made her original complaint.
[82] The explanation for Miss BA having a copy of Mr FE’s time records is that it is his practice to attach those time records to invoices he sends his clients.

12 It is not a complete copy of Mr FE’s file, as the pleadings associated with Miss BA’s application for a Separation Order are not included (although a copy of the Separation Order dated 4 September 2015 is included). However, on reading the file that has been provided, it appears to be a complete record of all correspondence between Mr FE and Miss BA, and Mr FE and Dr JI or his lawyer. There are some handwritten file notes but no other file notes or memoranda.


[83] Total fees charged by Mr FE (exclusive of GST and disbursements), were approaching $10,500. This covered two matters, separate but related, over a period of four months.
[84] At first blush, this presents as significant fees.

[85] It is surprising that the Committee felt that it could consider the fairness and reasonableness of Mr FE’s fees on the basis of terms of engagement, invoices (including narrations) and time records, and without any apparent comment or explanation from Mr FE beyond a denial of the conduct issues.
[86] The Committee said that it took into account the fee factors set out in r 9.1 of the Rules and it identified some of those factors in particular. Two of those noted by the Committee were the importance of the matter to the client and the results achieved.
[87] It is not clear from the Committee’s file how it measured the results achieved. The retainer began in April 2015 and ended in August of that year when Mr FE and Miss BA agreed to end the retainer. Apart from looking at Mr FE’s file, in which the answer might be found, there was no independent way of measuring “the results achieved”.
[88] It may be that the collective experience of the Committee members allowed them to conclude from the limited material before it, that Mr FE’s fees were fair and reasonable. After all, Standards Committee members who are lawyers are appointed to that role because of their “skill experience and judgement to deal with and make appropriate decisions in respect of complaints”.13
[89] However, neither the Committee’s file nor its reasoning contains sufficient information for this Office to have confidence in the process by which it concluded that Mr FE’s fees were fair and reasonable.
[90] I have therefore given thought as to whether I should refer this aspect of Miss BA’s complaint back to the Committee for it to conduct a thorough inquiry, including giving the parties opportunity to make submissions. This Office is reluctant to undertake a detailed analysis of a lawyer’s fees in circumstances where this ought to have been done at first instance by a Standards Committee.

13 Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, reg 15(2)(b).


[91] However, in deference to the considerable stress under which both parties have been as a result of the complaint and application for review, I have decided to deal with the question of whether Mr FE’s fees were fair and reasonable.
[92] In doing so, I do not propose to conduct a line by line audit of Mr FE’s time records. However, I have the advantage of having a copy of most of Mr FE’s files, and of receiving extensive written submissions from both parties. As well, both parties appeared before and made comprehensive submissions to Mr Hesketh.
[93] I consider that I have sufficient material on which to base an assessment as to whether Mr FE’s fees were fair and reasonable.
[94] Mr FE approached this retainer as involving two separate legal issues. The first, Miss BA’s instructions to obtain a separation order and secondly, resolution of relationship property issues. I will look at each in turn.
[95] Before doing so, I set out below the provisions of the Rules which deal with fees:
  1. A lawyer must not charge a client more than a fee that is fair and reasonable for the services provided, having regard to the interests of both client and lawyer and having regard also to the factors set out in rule 9.1.

Reasonable fee factors


9.1 The factors to be taken into account in determining the reasonableness of a fee in respect of any service provided by a lawyer to a client include the following:

(b) the skill, specialised knowledge, and responsibility required to perform the services properly:

(d) the urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by the client:

(e) the degree of risk assumed by the lawyer in undertaking the services, including the amount or value of any property involved:

(f) the complexity of the matter and the difficulty or novelty of the questions involved:

(h) the possibility that the acceptance of the particular retainer will preclude engagement of the lawyer by other clients:

(i) whether the fee is fixed or conditional (whether in litigation or otherwise):

(k) any fee agreement (including a conditional fee agreement) entered into between the lawyer and the client:

(m) the fee customarily charged in the market and locality for similar legal services.

[96] Rule 9 provides a comprehensive guideline for lawyers, Standards Committees and this Office to assist in determining what is a fair and reasonable fee to charge a client for legal work undertaken on the client’s behalf.
[97] Determining whether a fee charged by a lawyer is fair and reasonable, is not an exact science capable of precise determination. Inevitably it will involve the exercise of judgement, informed by the requirement that a final fee must be fair and reasonable to both the lawyer and the lawyer’s client.
[98] I record that I have paid careful attention to both rr 9 and 9.1 when assessing the fairness and reasonableness of the fees charged by Mr FE. No one factor has assumed any greater significance than any other factor, and I have approached the assessment critically and dispassionately.
[99] I also note that all legal fees have now been paid. However, this does not prevent Miss BA from raising complaint about those fees.

Separation Order


[100] Legal fees associated with this aspect of Mr FE’s retainer, were $5,214.00, plus GST and disbursements.
[101] Initially Mr FE advised Miss BA that applications of that nature are unusual and something of a relic from a bygone era, as parties generally reach agreement about when they separated and incorporate that date in their overall property agreement.
[102] However, Miss BA was adamant about obtaining a separation order from the Family Court as she required it for matters in which she was involved overseas.
[103] Indeed, there is correspondence from Mr FE to an attorney in the USA about the application.
[104] This aspect of the parties’ retainer did not proceed smoothly and in my view no fault can be attributed to Mr FE because of this. My reading of the correspondence on the file suggests that he approached this part of his retainer diligently and competently.

[105] The application for a separation order was filed by Mr FE on 4 June 2015. This was roughly five weeks after his first meeting with Miss BA. There is nothing remarkable about a delay of that order.
[106] There was an initial, though brief, delay with service, as Mr FE sought Dr JI’s lawyer’s consent to being served. This approach is what I would expect in a situation where lawyers are acting.
[107] Mr FE next endeavoured to persuade Dr JI’s lawyer to advise his client to consent to the application, so that an order could be made by a Judge in Chambers without the need for legal argument, a hearing or an appearance in person. Again, this was a sensible approach to take. There was, in fact, agreement between the couple about their separation date.
[108] However, Dr JI’s lawyer was initially sceptical about the application for a separation order, suggesting that it was a ruse to obtain an occupation order of the family home.
[109] Eventually that issue was overcome, but there followed a brief but inevitable delay when Dr JI terminated his retainer with his lawyer.
[110] As well, because the application for a separation order was filed on notice (as it had to be), the Family Courts Rules 2002 prescribed time limits for steps to be taken by Dr JI, before the matter could be considered substantively. Those procedural delays were unavoidable.
[111] By the middle of August 2015, relations between Mr FE and Miss BA were at a low ebb, largely over the management of the relationship property file. This prompted Mr FE to write to Miss BA on 14 August 2015, referring to a meeting between the two of them that day in which they “mutually agreed to go [their] separate ways”.
[112] By this date, the separation order had still not been made. However, in the following week, Dr JI signed a memorandum consenting to a Judge making a separation order.
[113] By then, Mr HG was managing the file. He informed Miss BA that the consent memorandum would not be filed with the Family Court until issues with unpaid invoices were attended to. This occurred and the consent memorandum was filed.
[114] A Judge sitting in Chambers made a separation order by consent on 4 September 2015.

[115] As indicated, total fees for this aspect of Mr FE’s retainer were $5,214.00, plus GST and disbursements. This was spread across three invoices, dated 5 June 2015 (being the date after the application for a separation order was filed in the Family Court), 5 August 2015 and 17 August 2015 (following Mr FE’s 14 August 2015 email confirming termination of the retainer). At Mr FE’s hourly rate of $395 (plus GST), this represents 13.2 hours of work on the matter.
[116] No issue has been taken by Miss BA either as to Mr FE’s hourly rate, or the disbursements associated with each invoice.
[117] As to his hourly rate, I note that by 2015 Mr FE had approximately 40 years’ experience practising as a lawyer. Most of that had been in family law, in particular resolving relationship property disputes.
[118] There is little doubt that Mr FE occupies a position of seniority as a lawyer and that he has extensive experience in the field of family law. I consider that an hourly rate of $395 is reasonable for a lawyer of Mr FE’s experience and seniority.
[119] The issue is whether Mr FE’s fee for all attendances associated with obtaining a separation order, were fair and reasonable.
[120] I note that Miss BA was insistent upon proceeding in this way, rather than agreeing a separation date with Dr JI and incorporating that date in a relationship property agreement. No criticism of Miss BA is intended by putting it in this way, as she had sound personal reasons for requiring a separation order rather than an agreement.
[121] In other words, this was an important matter for her.

[122] However, applying for a separation order is much more time-consuming than simply agreeing a date and inserting a brief clause to that effect in a relationship property agreement. Without wishing to overstate the obvious, as a minimum it involves preparing pleadings (including an affidavit in support), filing and serving the proceedings, complying with Court timetables and directions, and discussing or negotiating matters with the other side.
[123] Mr FE carried out all of those steps efficiently and competently. He encountered difficulties with Dr JI’s lawyer as to service and the basis of the application itself. As well, Dr JI was initially resistant to the application.
[124] Subsequently Dr JI elected to represent himself.

[125] All of this took time. Most of this was outside of Mr FE’s control.

[126] I have carefully read the correspondence on Mr FE’s file in relation to this aspect of his retainer. There is nothing in that correspondence to suggest anything other than careful attention and efficient management of this matter by Mr FE.
[127] Attached to each invoice is a copy of the relevant time records. There does not appear to be anything irregular about the time spent by Mr FE throughout this retainer. Most attendances are brief and consistent with work and attendances on an application of this nature.
[128] Mr FE was at all times responsive when required, and diligent in pursuing his client’s application. He expressed initial misgivings about the need to apply for a separation order through the Family Court, but on receipt of Miss BA’s very firm instructions to do so, together with her reasons, Mr FE proceeded without fuss to carry out those instructions.
[129] Stepping back, and looking at this matter dispassionately, robustly and through fresh eyes as I am required to do, I conclude that Mr FE’s fees in relation to his instructions to obtain a separation order, were fair and reasonable.

Relationship property


[130] Legal fees for this aspect of Mr FE’s retainer were a net amount of $5,107.35, spread across three invoices. This represents approximately 13 hours of Mr FE’s time.
[131] Again, I note that there is no issue as to Mr FE’s hourly rate, or the disbursements associated with the three relationship property invoices.
[132] Miss BA’s principal complaint about Mr FE’s legal fees is that she was charged for time spent by Mr FE on unrelated matters. In particular, she referred to what she described as Mr FE regularly belittling her and criticising her approach to resolving the dispute with her ex-husband.
[133] To that extent, this aspect of Miss BA’s fees complaint is interlinked with her complaint that Mr FE did not treat her with respect and courtesy. I propose to deal with that aspect of Miss BA’s complaint, first. If my conclusion is that Mr FE did not treat Miss BA with respect and courtesy in the manner outlined by her, then obviously this must reflect on the fairness and reasonableness of the fees he charged.

[134] If, however, I conclude that Mr FE’s conduct does not require a disciplinary response, then I will separately consider the issue of whether his fees in connection with relationship property issues, are fair and reasonable.

Failure to treat Miss BA with respect and courtesy


[135] There are three parts to Miss BA’s complaint against Mr FE under this heading:

Criticism of background and culture


[136] Miss BA complains that Mr FE made repeated references to her culture and background, explaining that matters were not dealt with in New Zealand as they might be in [Country]. Miss BA said that this was a regular theme of Mr FE’s discussions with her, and not simply a one-off explanation of the difference between New Zealand family law procedures and [Country] family law procedures.
[137] Miss BA also said that Mr FE spent excessive time talking about himself, his abilities and his successes.
[138] She considers that she should not have to pay for time spent by Mr FE in talking about those sorts of issues. She was humiliated by his comments, which she said made her feel as though she had come to New Zealand from a third-world country.
[139] By way of illustration about the way in which Mr FE spoke to her, Miss BA refers to a number of lengthy telephone discussions that she had with Mr FE — some of which were 30 minutes or more — during which time she was subjected to the barrage of personal and cultural criticism that she has described in her complaint and application for review. She referred to feeling exhausted and overwhelmed at the end of these telephone calls, to the point where she felt physically ill. She said that she avoided telephoning Mr FE and avoided taking his calls, preferring instead to try and deal with him by email.

[140] For his part Mr FE agrees that in trying to persuade Miss BA to accept his advice to have a round-table meeting with Dr JI and his lawyer, he told her that he had extensive experience in dealing not only with relationship property matters, but also with intransigent parties on the other side. He told her that in his experience, settlement was best achieved by face-to-face meetings, rather than exchanges of correspondence between lawyers and litigation. He also told Miss BA that he had a good success rate on behalf of clients in settling matters in that forum.
[141] Mr FE agrees that he explained to Miss BA that the New Zealand Family Court system differed from the [Country] system.
[142] He denies spending excessive or unreasonable amounts of time engaged in talking about those topics. He emphasises that his aim was to expedite a fair relationship property agreement for Miss BA, through a relatively stress-free process. In doing so he challenged her insistence that there be no meeting.
[143] Mr FE also said that he would be unlikely to criticise Miss BA’s background and culture, given his own background — his mother was [ Middle Eastern]. Mr FE also made the point that he saw his role as placating a distressed client and finding some common ground unconnected with their legal problem, about which they could safely talk. He considered that his [ Middle Eastern] background provided opportunity for that, and he told Mr Hesketh that he spoke to Miss BA about family matters and other cultural issues they might have in common.
[144] I observe that Mr FE’s timesheets for his relationship property attendances, and which he attached to his invoices, reveal relatively few telephone calls during the retainer. Those which have been recorded by Mr FE in his time records are generally for one or two units of time.14
[145] This is in contrast to Miss BA’s claim of a number of lengthy telephone calls. However, Mr FE did acknowledge during the hearing before Mr Hesketh that he did not always record every unit of time spent on Miss BA’s behalf. I infer from this, that there may have been telephone attendances that he did not record on his timesheet, or that he may have understated the length of those telephone attendances when he completed his timesheet.
[146] From this distance, it is difficult for me to say with any degree of certainty, whether there were lengthy telephone discussions between Mr FE and Miss BA of the

14 A unit of time appears to be six minutes.

type described by her. Given their disagreement about the merits of a round-table meeting, it seems likely that they would have had telephone discussions about that topic lasting for more than 12 minutes.

[147] That being said, I accept that many of her telephone discussions with Mr FE would have been unpleasant for Miss BA. This, because of the nature of what was being discussed: a difficult separation from Dr JI in circumstances where he was most unhappy about it. It is unsurprising that Miss BA would have difficulty talking about these things without becoming affected by her personal feelings.
[148] It is clear also from correspondence sent by Mr FE to Miss BA, that some of their telephone discussions were robust. It seems clear also that Miss BA raised her concern about this with Mr FE.
[149] By way of example, in an email to Miss BA dated 23 July 2015 Mr FE said:

My style is to be open and frank with people and you consider that “talking down to you” but that is not the case but I can’t just tell you what you want to hear and as an example of that we suggested a roundtable meeting. A roundtable meeting is like an informal mediation.


[150] Further, in Mr FE’s email to Miss BA dated 14 August 2015 he said “I tried to provide some strength for you in helping you through the difficulty but what you perceived as being ‘put down’”. And it later, “I really apologise for your perception, which was not intended”.
[151] In an email to Miss BA dated 8 December 2015, responding to her indication that she would be making a complaint against him, Mr FE said:

whilst the writer’s style might have been a bit hard for you to accept, I was trying to give you good, frank and open advice to help you through the obstacles which everyone faces with a matrimonial breakup.


[152] Before Mr Hesketh, Mr FE acknowledged that he was frustrated from time to time by Miss BA’s intransigence about a round-table meeting to settle relationship property differences. It is clear from the examples above, that he made his impatience known to Miss BA, and that she commented about that to him.
[153] A lawyer owes a duty to treat their client with respect and courtesy.15 These are not difficult concepts to understand.

15 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 3.1.


[154] Examples of a lack of respect and courtesy would include yelling or swearing at a client, personal criticism or inappropriate touching. These are but some examples of many.
[155] If a lawyer is found to have, say, sworn at their client or commented critically on their client’s personal appearance, then this may raise issues of unprofessional conduct and in particular whether the lawyer has overstepped the line of respect and courtesy.
[156] That line is often a difficult one for a lawyer to identify. A lawyer’s strategic view of their client’s case is informed by their training, experience and objectivity. A lawyer has a duty to give their client competent, independent, professional and objective advice.16
[157] This is often at complete odds to their client’s view of the case. And when that arises, there inevitably is tension between lawyer and client. The professional management of that tension is the responsibility of the lawyer, as he or she must always treat their client with respect and courtesy.
[158] Whether a lawyer crosses the line between, as Mr FE would have it, frank and robust advice on the one hand, and a lack of respect and courtesy on the other hand, will invariably be a question of fact in each case. As indicated above at [154] and [155], there will be clear examples of that line being crossed.
[159] Having made a complaint, Miss BA has the obligation to persuade me that it is more probable than not that Mr FE failed to treat her with respect and courtesy in relation to personal and cultural criticisms.
[160] It is difficult for me to say whether Mr FE’s frustration crossed the line from robust and frank advice, as he would have it, to a lack of respect and courtesy for his client and her position and instructions.
[161] I have some misgivings about the nature of some of Mr FE’s telephone interactions, in particular, with Miss BA. By his emails to Miss BA, referred to above, to some extent Mr FE has acknowledged both his blunt style and Miss BA’s objection to it. However, I cannot say to the degree of proof required that Mr FE’s conduct was such that a disciplinary response is called for.

Office greeting

16 Rule 5.3.


[162] Miss BA recalled only one incident where Mr FE greeted her in his reception area (with others present) by a handshake and by putting his left arm right around the top of her back and touching her left shoulder. At the same time, Mr FE told her that she “looked beautiful”.
[163] Miss BA believes that this occurred in April 2015; she is certain that it occurred before their meeting on Saturday 9 May 2015, which is the subject of a separate complaint and which I deal with further below.
[164] The relevance of this timing is that Miss BA only became concerned about the April 2015 incident when the 9 May 2015 incident occurred reasonably soon afterwards.
[165] Miss BA said that she did not take particular offence at the time (April), nor did she feel especially uncomfortable. She considered that it was an unnecessarily effusive manner of greeting.
[166] Miss BA does not recall any other occasion when Mr FE greeted her in a similar way. She told Mr Hesketh that she has no difficulty whatsoever being greeted professionally or collegially by a handshake.
[167] For his part, Mr FE has no recollection of the April incident referred to by Miss BA. He considers it unlikely that he would greet her in that way, but he could not discount the possibility that it occurred as Miss BA described.
[168] In greeting Miss BA at his office Mr FE said that she was treated no differently from any other client, with a handshake. This took place in the reception area at his office. There was, he said, nothing inappropriate in either his actions or his intentions.
[169] Mr FE does not recall telling Miss BA that she looked beautiful, but he said that as a follower of fashion himself he might tell a client that they looked nice. Again, Mr FE sees this as part of his role: to ease a client through difficult legal issues by being positive and complimentary.
[170] Of itself, the April incident does not reveal any serious professional shortcomings on Mr FE’s part. At the time, Miss BA thought little of it, other than Mr FE being overly friendly.
[171] However, as indicated Miss BA took a different view of the April incident, after the incident on Saturday 9 May 2015. She wondered whether there was a pattern of Mr FE crossing personal boundaries.

[172] I now turn to consider the 9 May 2015 meeting.

Saturday 9 May 2015 meeting at Mr FE’s office


[173] Miss BA said that Mr FE arranged to see her on a Saturday morning, to certify some documents for her. She arrived at his office, to be met and let in by Mr HG. She waited in the reception area, and very shortly afterwards Mr FE arrived.
[174] Miss BA felt that Mr FE was surprised to see Mr HG at the office. Mr FE and Miss BA went into Mr FE’s office and sat at a meeting table. She handed him the documents to be certified, one of which contained confirmation of her graduation as a dentist, together with a photo taken of her at the time of her graduation.
[175] Miss BA recalls Mr FE looking at the photo and saying, “you look more beautiful now than you did then”. This made her feel uncomfortable. She kept her eyes down, tried to act normally and wanted the meeting to end quickly.
[176] After Mr FE had completed the certifications, there was a brief discussion about her case, at the end of which Miss BA recalled Mr FE saying “what are you doing tonight?” Miss BA said that she made a comment about spending time with her daughter and then left.
[177] The entire meeting lasted about 10 minutes. Miss BA said that she found it unpleasant.
[178] Despite her reactions to what had taken place, Miss BA told Mr Hesketh that she could “not say that Mr FE had a bad intention”. Her concern is that the combination of the April and May events reveals a lawyer who acts in an overly-familiar and unprofessional way towards his clients. She emphasised that she found it unprofessional and unpleasant.
[179] Miss BA also said that after the Saturday 9 May 2015 meeting, there were no other encounters between her and Mr FE where she felt that he was behaving in an overly familiar or similarly unprofessional manner. Her other complaints as to respect and courtesy, dealt with by me above, concerned her view that he was repeatedly critical of her.
[180] Mr FE said that he had arranged the meeting for a Saturday morning as a courtesy to Miss BA, a busy dentist for whom business-hours appointments were difficult. Mr FE said that he does this from time to time for clients in similar

circumstances. He denies being surprised that Mr HG was present, other than to the extent that his staff do not tell him in advance if they will be at the office after hours.

[181] Again, Mr FE emphasised to Mr Hesketh his approach to clients who are facing difficult legal issues where emotion plays a significant part. He described how he attempts to “get an affinity” with those clients, by discussing non-legal matters, to try and keep clients in this situation, calm.
[182] Mr FE does not recall making any comment to Miss BA about the photo. He acknowledges that he may have asked Miss BA what she was doing for the rest of that day or the weekend, including that evening (a Saturday), but that this was innocuous and innocent, and carried no ulterior purpose whatsoever.
[183] Mr FE said that had he been seeing a male client in identical circumstances he would probably have asked a question about whether that client would be watching weekend rugby.
[184] Miss BA’s recollection of the events which occurred on 9 May 2015, is clearer than Mr FE’s which is equivocal.
[185] Given his acknowledged approach of trying to make a client feel comfortable, it is likely that Mr FE did make a comment about the earlier photo of Miss BA, and that he did ask her what she would be doing for the rest of the day, that evening, or the weekend.
[186] Mr FE’s practice of putting his clients at ease, is self-evidently commendable. Gaining a client’s trust and putting them at ease are important, but must be done professionally and respectfully.
[187] I accept that this is what Mr FE was doing at both the April and May meetings with Miss BA. His motives were well-meaning and otherwise benevolent.
[188] That being said, there can be opportunity for misunderstanding as clearly arose in this case. What Mr FE had intended as comforting, was interpreted by Miss BA as unprofessional.
[189] Not all effusive displays of meeting and greeting will be received by a client in the spirit in which a lawyer intends it. Lawyers must take care to ensure that their demeanour is empathetic yet measured; reassuring yet restrained. This can be accomplished without the lawyer having to refer to matters which might be personal to either of them.

[190] A lawyer’s role is not to win a popularity contest: it is to ensure an atmosphere where their client can safely and privately discuss their most important issues, without judgment. This requires a lawyer to be respectful and courteous having regard to such things as the age, gender, culture and capacity of a client. It is not a fixed, one-size- fits-all approach; it will be tempered according to the needs and temperament of the lawyer’s client at the time.
[191] This approach goes hand in glove with the obligation to provide professional and objective advice.
[192] As with the April incident, of itself I do not consider that Mr FE treated Miss BA with a lack of courtesy and respect when they met at his office on Saturday 9 May 2015.
[193] Moreover, I do not consider that the combination of the largely uncontested events of the two meetings reveal a pattern of inappropriate or unprofessional behaviour on the part of Mr FE. At worst, Mr FE misread his client’s need for reassurance. She did not need to know about her appearance or to discuss her social life; she required — as she put it to Mr Hesketh — a calm approach to assisting her through a hard time. She needed him to guide her through that without distraction.
[194] I agree with the Committee’s conclusion that this aspect of Mr FE’s conduct does not require a disciplinary response.

Relationship property fees: fair and reasonable?


[195] Having found that Mr FE’s conduct did not breach the obligation to treat Miss BA with courtesy and respect, I now turn to consider whether the fees he charged for relationship property attendances were fair and reasonable.
[196] Miss BA said that she had a clear view of what the legal issues were and the outcome she required. She found Mr FE’s approach, as well as being unprofessional, unhelpful and not in accordance with her instructions.
[197] On the other hand, Mr FE said that as the experienced, objective professional he was able to assess with much greater precision than Miss BA, the best strategy to adopt in dealing with Dr JI. Mr FE has a general approach to relationship property disputes of endeavouring to resolve them without recourse to litigation. His view is that this is less costly and stressful.

[198] Often Mr FE meets resistance to this approach from clients, but he sees it as part of his role as their legal advisor to give clear and firm advice about options and potential outcomes.
[199] There can be no criticism of Mr FE’s general approach to resolving relationship property disputes. It is so self-evident as to approach the trite to say that an agreed outcome is cheaper and involves far less stress, than a litigated outcome.
[200] Not all clients will be happy with this approach, for their own reasons. Their lawyer will undoubtedly have their own, possibly better, reasons for disagreeing with a client’s approach. However, fundamental to the lawyer-client relationship is that a lawyer must follow their client’s lawful instructions, whatever view the lawyer may have about the efficacy of those instructions.
[201] The issue then becomes, when must a lawyer refrain from giving the same advice over and over to a client who is unwilling to accept that advice, and simply get on with the job of doing what their client instructs?
[202] The answer will of course vary from case to case. But if a client persists in giving emphatic instructions about the course they wish to adopt, then a lawyer must proceed accordingly. Naturally, whilst proceeding as instructed, a lawyer can continue to give advice about strategy, including suggesting alternatives.
[203] Mr FE’s retainer with Miss BA lasted approximately four months. In connection with the relationship property issues, Miss BA maintains that nothing was accomplished. She said that the lawyer subsequently engaged by her had all matters resolved by agreement with Dr JI by Christmas 2015, with formal settlement early in 2016.
[204] It is simplistic and unrealistic to approach the issue of whether Mr FE’s fees were fair and reasonable, purely on the basis of whether agreement had been consummated with Dr JI within the four months of Mr FE’s retainer coming to an end. Likewise, the fact that counsel who replaced Mr FE was able to reach agreement with Dr JI, does not in and of itself, reflect on the fees charged by Mr FE.
[205] Mr FE argues that settlement was ultimately possible because he had done all of the initial “heavy lifting” in the matter so that all that was left, were the finishing touches.
[206] That does not necessarily follow, either. It is impossible to identify the circuit breaker which brought the parties to their settlement.

[207] It is however reasonable to observe that the combination of Mr FE’s representation of Miss BA, and Dr JI’s lawyer’s representation of him, at the very least identified the parameters of the couple’s dispute.
[208] Mr FE emphasises (and, to Miss BA, emphasised) his long experience in relationship property disputes and his ability to provide practical advice and broker fair settlements. He places great store in his ability to achieve a result for his clients outside of the boundaries of litigation. His preferred approach is to have a round-table meeting of the parties and their lawyers, as the means by which agreement can be reached.
[209] There is undoubted merit in this approach. Indeed, it is expected that a lawyer acting for a client involved in a dispute:17

will keep the client informed of alternatives to litigation that are reasonably available ... [so that] the client is informed by the lawyer of the nature of the decisions to be made and the consequences of them.


[210] But on this issue, Miss BA and Mr FE were in strong disagreement. Miss BA was clear in her instructions to Mr FE that she would not agree to Mr FE attending, much less attending herself, any face-to-face meeting with either Dr JI or his lawyer.
[211] Her reasons for this stance appeared to be that she did not believe that Dr JI would agree to anything proposed and that meeting with him was a waste of time.
[212] Mr FE was able to persuade Dr JI’s lawyer to agree to a meeting between the parties, but Miss BA again instructed otherwise.
[213] It is clear by the correspondence on the file that a great deal of Mr FE’s time was spent trying to persuade Miss BA to agree to a meeting with Dr JI and his lawyer. There are regular references in the email correspondence between the two, of telephone discussions about this topic. Some were obviously difficult discussions.
[214] Miss BA’s usual method of communicating with Mr FE was by email (and possibly text message); those printed and put on Mr FE’s file are brief but concise. On the other hand, Mr FE made it clear to Miss BA on a number of occasions that he could not provide comprehensive advice by email; he preferred to either speak to his client on the telephone or see them personally.

17 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules, r 13.4. The same rule also requires lawyers to "follow a client's instructions on significant decisions in respect of the conduct of litigation".


[215] One such example is Mr FE’s email to Miss BA on 10 July 2015, where he said “unfortunately, it just does not work and it will not work ... to try and resolve relationship property matters by email”. And further, “I can only urge you to make an appointment [to see me]”.
[216] There is merit in this approach. Although a client may have a firm view of the management of their case, and be able to concisely express that in writing, it is often only by a process of discussion with their lawyer that more informed decisions are made and instructions given. It is the lawyer’s role to guide, and clear pathways tend to emerge after careful discussion.
[217] On the other hand, there does not appear to have been any substantive discussion about legal proceedings to resolve issues of relationship property. None appear to have been drafted. Few file notes exist of either meetings or telephone attendances between Mr FE and Miss BA; those which do, are brief.
[218] There is regular correspondence between Mr FE and Dr JI’s lawyer about the relationship property issues. Much of this correspondence dealt with the issue of whether one party would buy the other out of either the commercial property or the family home, and how any adjustments might be made.
[219] For his part, Dr JI, through his lawyer, was anxious to obtain disclosure of financial records from Miss BA and Mr FE was required to remind her about this on more than one occasion.
[220] In looking at the attendances as a whole, there are none which present as unreasonable or unnecessary. It might be said that more time than was necessary was spent by Mr FE in trying to persuade Miss BA to agree to a meeting with Dr JI. But overall, I do not consider that this had the effect of unreasonably or unfairly inflating the time spent by him on this aspect of his retainer.
[221] It is difficult to say with precision, the stage that matters had reached when Mr FE sent his 14 August 2015 email to Miss BA, confirming the end of their retainer. Certainly, matters had progressed from there being no identification of, or discussion about, property issues with Dr JI before Mr FE’s involvement, to a situation where at the very least, the parameters of their potential dispute were known. That must certainly have provided a platform for matters to progress, although as I have said, I do not necessarily agree that it provided the platform for settlement.

[222] It is difficult for a client when she spends several thousand dollars on a legal problem yet when the retainer ends, she does not readily observe any value for money. However, results obtained is but one of the factors to be considered.
[223] Looking at matters dispassionately and critically, I cannot say that Mr FE spent more time than a reasonably competent lawyer in this field would spend on a matter of this nature. As indicated above, total time was roughly 13 hours. Again, Mr FE’s timesheets do not reveal any irregularities demonstrating a lack of either attention or competence.
[224] I find Mr FE’s fees in relation to the relationship property dispute, to have been fair and reasonable.

Other


[225] There was one final matter about which Miss BA had complained. When Mr FE’s retainer with Miss BA came to an end, there were outstanding legal fees.
[226] Emails between Miss BA and Mr HG, and Miss BA and Mr FE, were exchanged towards the end of 2015 about payment of those outstanding fees. No agreement could be reached.
[227] Mr FE took steps to recover his outstanding fees by issuing summary judgment proceedings against Miss BA. She did not take any steps towards defending those proceedings and judgment was entered against her by default. Miss BA subsequently paid the outstanding balance.
[228] Shortly afterwards Miss BA spoke to her bank about a loan. She was told that because judgment had been entered against her, any loan application would be declined. Her lawyer at the time, informed her that notification of the judgment would last for five years during which time she would encounter difficulties in raising finance.
[229] Miss BA complains that Mr FE misused his knowledge of legal processes and obtained judgment against her in circumstances where he knew that this would affect her credit rating. He knew that at some point she would require bank finance.
[230] Mr FE denies that he acted in this way. He said that he took steps to obtain payment of his outstanding invoice through the conventional means of summary judgment proceedings. Because Miss BA took no steps in those proceedings, judgment was entered and the process of public notification of judgments entered then followed.

[231] Whilst I have some sympathy for Miss BA and the difficulties she has encountered in obtaining finance, particularly when the outstanding fees were less than

$1,500, there can be no criticism of Mr FE for issuing proceedings to recover those fees. The simple fact is that Miss BA did not take any steps when served with the proceedings, the result of which was judgment being entered against her. Had she taken steps she may have avoided this outcome by negotiating a clear payment plan with Mr FE.

[232] I do however note that in his email to Miss BA dated 8 December 2015, Mr FE refers to outstanding fees and said that:

if the account is not paid in full by [a date] then we will be advising the Credit Rating Authority of your default and issuing proceedings in the District Court...


[233] Mr FE has said that he did not take the step of advising the “Credit Rating Authority”; he merely issued proceedings and obtained judgment and that it was the process of obtaining judgment that triggered a negative credit rating.
[234] I have some concern about Mr FE’s reference to “the Credit Rating Authority”. I know of no such agency. There are privately operated credit reporting agencies, but these agencies do not act as enforcement bodies. Mr FE’s reference to an “Authority” carries with it a flavour of officialdom which is incorrect and unfortunate.
[235] However, I do not regard that as raising any conduct issues given that Mr FE issued proceedings and obtained judgment as he was entitled to do. It was the entry of judgment which triggered the adverse listing for Miss BA.

Conclusions


[236] Having carefully considered the material on the Standards Committee’s file, the submissions filed by Miss BA and Mr FE in relation to the application for review including Mr FE’s file, together with Mr Hesketh’s report of the hearing over which he presided on 19 March 2018, I am satisfied that none of the issues of complaint raised by Miss BA should result in professional disciplinary findings against Mr FE.

Decision

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

DATED this 6th day of April 2018

2018_3000.jpg

R Maidment

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:

Miss BA as the Applicant Mr FE as the Respondent

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

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