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YA v MK [2018] NZLCRO 55 (29 June 2018)

Last Updated: 23 July 2018


LCRO 58/2015

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
YA

Applicant

AND
MK

Respondent

DECISION

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

Introduction


[1] Mr YA has applied for a review of a decision of the [City] Standards Committee [X] (the Committee) dated 1 March 2015 by which the Committee decided further action was not necessary or appropriate on Mr YA’s complaint about Mr MK’s conduct, pursuant to s 138(2) of the Lawyers and Conveyancers Act 2006 (the Act).

Background


[2] Mr YA contends that Mr MK owed fiduciary obligations to ROYA Limited (ROYA) and to Mr YA personally. Mr YA says Mr MK should not have been involved in negotiating, drafting or witnessing an agreement between Mr YA and his business and personal partner, Ms RO, at the time of their separation on 17 December 2013 amid mutual allegations of domestic violence.
[3] On Mr YA’s account, he and Ms RO had been in a relationship from around 2010 and at Ms RO’s suggestion had moved their legal business to Mr MK some time in 2011. At some point Mr MK had drafted an agreement between Ms RO and Mr YA which related to their personal property interests. Although Ms RO and Mr YA both signed a version of that agreement, it does not comply with the formalities of s 21F of the Property Relationships Act 1976 (PRA).

[4] It seems that at some point Ms RO and Mr YA incorporated ROYA without input from Mr MK. Mr YA says he was the sole director and shareholder, and it seems Ms RO attended to the formalities of forming the company. Mr YA signed a sale and purchase agreement as director, pursuant to which ROYA would purchase land for subdivision (the land). Mr YA says Mr MK provided advice on the subdivision to him and Ms RO.

[5] The relationship between Mr YA and Ms RO had foundered by late 2013. With her father’s support, Ms RO arranged a meeting at Mr MK’s office on 17 December 2013 and invited Mr YA to attend. It is understood that Mr YA spoke to an independent lawyer and then attended the meeting without representation. Mr YA says Mr MK, Ms RO, her father and a family friend, Mr GJ, were present.

[6] Mr MK described his role as to facilitate the meeting and document any agreement the parties reached. Mr MK’s understanding at the time was that Mr YA and Ms RO had already reached agreement over a range of issues including real estate, shares in companies including ROYA and interests held in trusts. Mr MK documented his understanding of the agreement and laid out the mechanics of a process to enable the couple to undo their intertwined arrangements. Both parties’ signatures to the agreement are witnessed, although no PRA certifications are given.

[7] The agreement concludes:

Each party acknowledges that before signing his (sic) agreement he or she has had independent legal advice as to its effect and implications and confirm that they have entered into this agreement of their own free will and without duress or compunction or emotional blackmail.


[8] Mr YA says that Mr MK also produced, and had Mr YA sign, other documents relating to ROYA at that meeting. Mr YA refers to a form by which he resigned as director of ROYA and a share transfer form by which he relinquished his shares in ROYA to Ms RO. Those documents were referred to in the agreement and Mr YA says Mr MK prepared them.
[9] It is understood that Mr MK advised both parties to immediately instruct other lawyers.

[10] The next day, Ms RO went to Mr MK’s office and uplifted a file from him. Mr YA later said that the file had included originals of the documents he and Ms RO had signed the previous day.

[11] Mr YA sought independent advice from Mr SV. Mr YA’s case for avoiding the agreement could have been significantly assisted by Mr MK’s evidence, but it had to be tested first.

[12] Mr SV pressed Mr MK for answers. Mr MK responded with explanations that included reference to the matter being very urgent, his repeated advice to Mr YA to see a lawyer, having done no more than document what the parties had agreed, facilitating agreement and mediating between the parties. At one stage Mr MK said he had acted for both parties, and later that he had acted for neither on the basis that no advice was given. Mr MK denied having applied any pressure to Mr YA to sign the agreement. Mr SV challenged Mr MK’s explanations, and drew his attention to his obligations pursuant to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the rules) on the basis that witnessing Ms RO’s signature on the agreement could be taken as evidence that Mr MK had acted for her.

[13] Mr MK adopted the position that:

Witnessing means just that. Certifying advice is entirely different and both parties were aware they needed and indeed told me they had obtained independent legal advice and this would be later certified on the agreements prepared and signed at our office on the day. The basic content of that agreement had been recorded in writing during the weekend preceding the meeting at our offices and following the assault that took place at [Address]. Both seemed keen to sign at our office.


[14] All of Mr MK’s comments to Mr SV were premised on Mr MK’s acceptance that Ms RO’s version of those events was to be preferred over Mr YA’s. A proceeding followed between Ms RO and Mr YA. Given Mr MK’s preference for Ms RO’s version of events, and putting aside any potential professional conduct issues, it is not difficult to see that calling evidence from Mr MK would have carried significant risks for Mr YA.

[15] In due course, Mr YA made a complaint to the New Zealand Law Society (NZLS) about Mr MK’s involvement in events on 17 December 2013.

The complaint


[16] Mr YA’s complaint proceeds from the basis that Mr MK breached a fiduciary duty to ROYA, owed to Mr YA in his capacity as the company’s sole director and shareholder.1 Mr YA says that as well as the agreement, Mr MK had him sign a form resigning as director of ROYA and transferring his shareholding to Ms RO. Mr YA says that for various reasons Mr MK was unprofessional and negligent in allowing Ms RO to attend the 17 December 2013 meeting.

[17] Mr SV wrote in support of Mr YA’s complaint, adding further to the evidence Mr YA had provided. Mr SV detailed events before and after the agreement was signed and argued disadvantage to Mr YA arising from the relationship between Ms RO and to Mr MK. He was also critical of the way Mr MK had administered funds that Mr SV says were held by Mr MK in his trust account for or on behalf of Mr YA and Ms RO jointly.

[18] As to conflict-of-interest, Mr SV said that:

[19] Mr SV then referred to Mr MK:

1 This point does not appear to be enlarged upon in terms specific to ROYA. It is not clear how Mr MK is said to have acted for ROYA, but that may be because the main thrust of the complaint centers on Mr YA’s personal interests.

(c) asserting that as the share transfer had not been signed by both parties it was “ineffective”.2

[20] In the course of correspondence between them, Mr MK provided Mr SV with a form of indemnity and waiver apparently signed by Mr YA on 17 December 2013 that said:
  1. You have not provided me legal advice in respect to the agreement entered into this day 17 December 2013.
  2. That you have recommended to me on 16th December that I obtain separate legal advice and I have done so. (emphasis added)
  3. That I will not take action of any sort against you or your firm and hereby indemnify you and MK Law.

[21] In his response to the complaint, Mr MK said Ms RO had signed a similar document.

[22] Mr SV says that ROYA shares were transferred to Ms RO on 3 April 2014 and her father had been appointed sole director, although he does not say who had formalised and registered the Companies Office documentation.

[23] Mr YA holds Mr MK responsible for his part in the situation Mr YA now finds himself in. In particular, Mr YA says Mr MK should have distanced himself from the drafting, signing and witnessing of the agreement and related documents, particularly those that affected his interests in ROYA, to which Ms RO appears to maintain claims.

[24] Mr YA says he can give no logical explanation for signing the agreement in December 2013. He relies on his state of mind at the time being affected by recent upsetting events. Although he does not appear to dispute having signed the document described as an indemnity and waiver, Mr YA says he is unable to recall Mr MK advising him to seek independent legal advice.

Conflict of interest


[25] Mr SV maintained throughout that Mr MK acted in a conflict of interest. His basic contention for Mr YA was that:

MK was in a position of conflict in acting for both parties, and in purporting to act for RO following the breakdown of the relationship, MK allowed our client to sign two relationship agreements (which are seemingly void for failure to comply with the statutory requirements), share transfers and a director resignation without

2 No copy of the signed share transfer has been provided on review.

the opportunity to obtain any independent legal advice. Given that he had acted previously for both our client and RO, it should have been apparent to MK that our client was relying on him for advice, and that both our client and RO should have separate advice. As a result of MK's failures, our client has and continues to suffer losses because of his inability to deal with the property.


Mr MK's response


[26] Writing on 28 October 2014 in response to the complaints raised by Mr SV, Mr MK asserted with reference to the 17 December 2013 meeting that he had acted in the capacity of a facilitator only, doing so because Mr RO (Ms RO’s father) was a family friend and the matter was one of utmost urgency concerning, as he said it did, the safety of Mr RO’s daughter following family violence two days before. He said that at the outset of the meeting he carefully explained his position.

[27] Mr MK recorded some of the events that had followed the 17 December 2013 meeting, reporting that Ms RO had instructed new lawyers and counsel had been instructed. Mr MK said no loss had accrued to Mr YA arising from him having signed any agreement.

The issues considered by the Committee


[28] These were:
  1. whether Mr MK overcharged and then deducted overcharges from the sale proceeds of lots to the possible disadvantage Mr YA and, if so, was he in breach of his professional obligations;3
  2. did he have a conflict of interest to the extent that he may have advised both Ms RO and Mr YA in respect of a relationship property agreement without suggesting that Mr YA seek independent legal advice and in circumstances where he had previously acted for Ms RO in her personal capacity and, if so, did he breach Rules 5, 6, 6.1 and following of the Lawyer: Client Care and Conduct Regulations 2008 (RCCC);
  3. did he have a conflict of interest to the extent that he subsequently acted for Ms RO in relationship property proceedings after previously acting for both Ms RO and Mr YA in respect of a relationship property agreement and, if so, did he breach Rules 8, 8.1, 8.7 and following of the RCCC; and
  4. did he use confidential information, obtained at a time when he acted for both Ms RO and Mr YA in respect of a relationship property agreement, in order to benefit Ms RO in subsequent relationship property proceedings conducted on her behalf and, if so, did he breach Rules 8, 8.1, 8.7 and following of the RCCC.

3 This issue did not resurface on review.

[29] The Committee identified the following rules as relevant:
  1. A lawyer must be independent and free from compromising influences or loyalties when providing services to his or her clients.
  2. In acting for a client, a lawyer must, within the bounds of the law and these rules, protect and promote the interests of the client to the exclusion of the interests of third parties.

8. A lawyer has a duty to protect and to hold in strict confidence all information concerning a client, the retainer, and the client’s business and affairs acquired in the course of the professional relationship.4

8.1 A lawyer’s duty of confidence commences from the time a person makes a disclosure to the lawyer in relation to a proposed retainer (whether or not a retainer eventuates). The duty of confidence continues indefinitely after the person concerned has ceased to be the lawyer’s client.


8.7. A lawyer must not use information that is confidential to a client (including a former client) for the benefit of any other person or of the lawyer.

8.7.1 A lawyer must not act for a client against a former client of the lawyer or of any other member of the lawyer’s practice where—

4 This provision has a very broad sweep as even information acquired in the course of the professional relationship that may be widely known or a matter of public record (such as the address of the client, criminal convictions, or discharged bankruptcy) will nevertheless be confidential information.

Decision


[30] On the claim that Mr MK overcharged, the Committee decided to take no further action. Mr MK’s response had been that, as to related property transactions after the agreement was signed, he saw Ms RO as his only client. His view was that as she had expressed no concern, Mr YA’s concerns were irrelevant.

[31] The Committee recorded that it was not satisfied that Mr MK had a conflict of interest or faced conflicting duties. It accepted that, although he had witnessed Ms RO’s signature, he had not advised the parties in respect of the agreement. It said that “significantly, the parties each took copies of the agreement to another solicitor for certification” and that Mr MK's involvement had been restricted solely to facilitating the execution of the document.

[32] The Committee went on to say that:5

even though Mr MK was not acting for either party in respect of the (December) agreement, he had on both 16 and 17 December 2013 urged Mr YA to seek independent legal advice prior to signing the document, a fact that Mr YA himself confirmed in a written note.


[33] The Committee considered Mr YA had multiple opportunities to seek independent advice but refused to do so, rejecting his assertion that he felt pressured into signing the agreement in December.

[34] The Committee did not accept Mr YA’s allegation that Mr MK had a conflict of interest on the basis that he represented Ms RO in subsequent relationship property proceedings, after previously advising Ms RO and Mr YA jointly in respect of a property subdivision. It similarly rejected as unsupported an allegation that Mr MK had used information obtained at the time he represented the two jointly, that was confidential to Mr YA, and used to benefit Ms RO.

[35] The Committee’s reasoning appears to have proceeded from an early and significant conclusion that it had been left to both parties to seek independent advice in respect of the agreement signed in December. The Committee accepted that Mr MK had done no more than facilitate execution of the agreement already reached by Ms RO and Mr YA.

5 I take it this is a reference to the indemnity and waiver Mr MK prepared that is referred to earlier in this decision.

[36] In rejecting Mr YA’s contention that Mr MK had a conflict of interest and that he used confidential information in the context of representation in subsequent relationship property proceedings, the Committee said that it was mindful that r 6.1 of the rules did not disqualify a lawyer from representing a party in proceedings initiated against a former partner simply because the client and that former partner had provided instructions to the lawyer in the past. Rather, it said, every situation was unique and so consideration must be on a case by case basis.

[37] When it came to r 8 and its sub rules including r 8.1, the Committee noted that the rule required lawyers to turn their attention to the four elements set out at r 8.7.1, all of which had to be present for there to be a breach.

[38] The Committee was not satisfied that Mr MK held information that was confidential to Mr YA, the disclosure of which would be likely to affect his interests adversely, nor that there was more than a negligible risk of disclosure of any such information. The Committee was not persuaded that the fiduciary obligation owed to Mr YA as a former client would be undermined by it reaching that conclusion.

[39] The Committee explained:

... Mr YA's previous contacts with Mr MK (had) been in the context of joint instructions by both him and Ms RO in respect of the [XYZ] property subdivision. There was nothing... to suggest that Mr YA had instructed Mr MK in his sole personal capacity or otherwise provided information to him to which Ms RO would not already have been privy. For that reason, the standards committee could see no possible disadvantage to Mr YA arising out of Mr MK's representation of her in the subsequent relationship property proceedings. (It) was satisfied that Mr MK acted appropriately in the circumstances.


An issue missed


[40] After the decision was issued, Mr SV pointed out to the Committee that it did not appear fully to have dealt with Mr YA’s complaint relating to the share transfer document.

[41] The Committee reconvened to consider:

By transferring shares in ROYA Limited to Ms RO on 3 April 2014, did Mr MK breach an undertaking provided by way of letter dated 24 January 2014 to the extent that he assured that he would not “activate anything (in the relationship property agreement) ...” without first notifying Mr SV and, if so, did he breach his professional obligations under the RCCC or any other enactment?


[42] Having considered that issue, the Committee accepted Mr MK's explanation that he provided the assurance that he would not “activate anything” contained in the

agreement after 18 December 2013. Mr MK said he did not give effect to the share transfer, so he had not “activated” anything in relation to the agreement and could not be said to have breached the undertaking provided to Mr SV.


The review application


[43] The principal focus of the 7 April 2015 review application was on Mr MK’s conduct around the agreement on 17 December 2013. Briefly, Mr YA repeated the allegations from his original complaint that:
  1. he was called to Mr MK’s office on very short notice and found himself in the company of Mr MK, Ms RO, her father and Mr GJ;
  2. Mr MK was aware that:
    1. Ms RO:
      1. had been placed under the 24-hour care of Mr GJ by her psychiatrist; and
    1. had assaulted Mr YA 48 hours before;
  1. Mr YA:
    1. was sleep deprived; and
  1. in no condition to sign anything;
  1. Mr MK had given the share transfer to Ms RO and it had been registered despite Mr MK having previously assured Mr SV that it was inoperable; and
  2. in his subsequent correspondence with Mr SV, Mr MK had defamed Mr YA by rehearsing allegations of assault by him on Ms RO and her father.6

Review on the papers


[44] With the parties’ consent, this review has been conducted pursuant to s 206(2) of the Act, which allows a Legal Complaints Review Officer (LCRO) to conduct the review on the basis of all the information available if the LCRO considers, as I do, that the review can be adequately determined in the absence of the parties.

6 It would in fact seem that Mr MK, in lawyer to lawyer communications, or those related to the complaints process, merely rehearsed his instructions in this respect, so I leave that point to rest.

Nature and Scope of Review


[45] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:7

... 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.


[46] More recently, the High Court has described a review by this Office in the following way:8

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.


[47] 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:

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

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

Discussion


[48] The key issue on review is whether Mr YA gave Mr MK informed consent to act on 17 December 2013.

[49] Informed consent is defined in r 1.2 as meaning:

consent given by the client after the matter in respect of which the consent is sought and the material risks of and alternatives to the proposed course of action have been explained to the client and the lawyer believes, on reasonable grounds, that the client understands the issues involved.


[50] Fundamentally, Mr MK’s position is that on 17 December 2013, his retainer with Mr YA and Ms RO was limited. Both knew they had a right to take legal advice elsewhere. Mr YA had seen another lawyer, so must be taken to have known he did not have to attend the meeting or sign the agreement. Mr MK told him several times at the 17 December meeting to go and seek advice from another lawyer on the effects and implications of the agreement before it could be certified for the purposes of the PRA.

[51] Given the parties’ history of signing but not having certified agreements, Mr YA’s visit to a lawyer on 16 December 2013 and Mr MK’s explanations to him on 17 December 2013, it seems highly unlikely that Mr YA did not appreciate that he could avoid an agreement if it did not comply with the formalities of s 21F, albeit agreements can have immediate effect even without proper certification.9

[52] For whatever reasons, it seems both parties gave Mr MK the impression they were keen to sign the agreement on 17 December 2013. Mr MK took that at face value.

[53] There is insufficient evidence to be certain where Mr MK’s drafting began and ended. He says he mediated between the couple, which tends to suggest there was a degree of negotiation. However, as they had agreed the substance of the agreement, it seems that all he was doing was working through the mechanics to give effect to what they had agreed. That is supported to a limited extent by the signing of company documents to give effect to the allocation of property as the couple had agreed.

[54] Mr MK says he carefully explained his position at the start of the meeting. He has not provided any details of what he said, but it can reasonably be assumed that it included an explanation of the limits on what he could and could not do for the couple.

9Thom v Davys Burton [2008] NZSC 65, [2009] 1 NZLR 437.

It is accepted that he explained that conflict could be resolved by the couple immediately obtaining independent advice on the agreement.


[55] It is noted that unlike Ms RO, who collected a file from Mr MK the next day, Mr YA seems to have delayed seeking advice. His engagement of Mr SV seems to have occurred early the following year. It is observed that Mr YA could have minimised any repercussions from signing the agreement by doing as Mr MK had suggested, and sought advice immediately instead of waiting.

[56] It is not clear whether, in the time available to him, Mr MK could have obtained more detailed and precise confirmation that Mr YA’s consent was informed and met the definition in r 1.2. Mr MK was instructed to provide services urgently, and was obliged to provide services in a timely manner. Aside from the general risk that a person may repent an agreement, there is no evidence of Mr MK having any reason to foresee that Mr YA would decide to avoid the agreement even though he had signed a waiver and indemnity.

[57] Although it is not a focus of his application for review, Mr YA’s key concern in his complaint appears to relate to ROYA and the fiduciary duties Mr MK is said to have owed to it. It is not clear whether Mr YA’s concern is focussed on Mr MK, or on his own duties as a director.

[58] Mr YA was the director of ROYA. He transferred his controlling interest and shares to Ms RO. The underlying proposition, which is that Mr YA did not understand what he was doing, is difficult to accept given Mr YA’s history in business, and the discussions he and Ms RO must have had before they decided to set up the company as a separate entity for development purposes. The company seems to have been where the value of the property in which Ms RO claimed an interest was held. Ms RO’s claim was that she had contributed to the increased value of the assets that were held in the company structure.

[59] The company’s interests were so intertwined with the couple’s it would be difficult, though not impossible, to sustain an argument that there was no relationship property held in the company. It is not accepted that Mr YA did not understand and consent to the agreement including relationship property held in the company. It is accepted he may not have understood how his obligations fitted in with the company’s, but that is a result of his understanding of the burdens he was accepting at the time he entered into those obligations, rather than any advice at the end of his relationship with Ms RO.
[60] Mr YA’s position is that he was the more vulnerable of the two and therefore should not be taken to have consented to a reduction in his rights. From the limited information available on review it is impossible to be able to form a firm view on that. What information there is provides only very limited support for that argument.

[61] How a lawyer counsels a client on the limitations on fiduciary obligations depends on the circumstances in each case. The key point is that conflicts of interest should be identified in a timely way and there is no doubt that in the present matter they were. That is precisely why Mr MK pointed Mr YA to an independent lawyer before he attended the meeting on 17 December 2013.

[62] It remains unclear whether Mr MK’s understanding that Mr YA gave informed consent to him drafting the agreement Mr YA and Ms RO signed on 17 December 2013 was wrong. Mr YA’s evidence cannot be subjected to cross examination on review, but the outcome depends on a significant extent on an assessment of what Mr YA knew and understood.

[63] Beyond Mr YA’s unsupported assertions that he did not give informed consent, the evidence available on review tends to suggest that he did. Ideally Mr MK would be able to demonstrate beyond doubt. However, there is insufficient evidence to be certain enough to make an adverse finding against Mr MK.

[64] Mr YA’s application for review does not provide a basis on which to reach different conclusions to those reached by the Committee. Before Mr YA attended Mr MK’s office at short notice on 17 December 2013 he had seen an independent lawyer. If he had not wanted to attend, he could have declined the invitation or rescheduled if the timing was not convenient to him. If he did not want to be joined by Mr RO and Mr GJ he could have left, or asked them to.

[65] There is no evidence that gives rise to concern over compulsion on Mr MK’s part. Mr MK could not force Mr YA to attend or bring a lawyer along. There is no evidence of Mr MK having compelled Mr YA to attend. There is no evidence to support the contention that Mr YA did not attend of his own free will. If Mr YA was tired, he could have stayed away. He had consulted a lawyer the previous day. It can safely be assumed that he was advised he did not have to attend and he did not have to sign anything.

[66] It is difficult to understand the relevance of the references in Mr YA’s application for review to Ms RO having been to see a psychiatrist, supposedly being placed under Mr GJ’s care and the alleged assaults.
[67] As to registration of the share transfer, there is no evidence of any involvement on Mr MK’s part in that. It may be that he considered the transfer documents were inoperable. They may have been. That is an argument for Mr YA to have with Ms RO.

[68] This Office has no jurisdiction in respect of the allegations of defamation. Mr MK cannot know whether or not the allegations of assault were true. While he may have repeated what he had been told by Ms RO and her father, Mr MK’s conduct is not marred by disrespect, discourtesy or a lack of professionalism. It is simply evidence of what Mr MK was told by Ms RO and her father at the time.

[69] The evidence is consistent with Ms RO (and her father) having instructed Mr MK after she had separated from Mr YA in difficult circumstances. Although they had dallied with agreements, Ms RO and Mr YA had not documented any concluded agreement for the purposes of the PRA. Their views of their rights and entitlements to property were at odds, but potentially reconcilable on the basis of the agreement Ms RO must have shared with Mr MK.

[70] There is also a record of acceptance on Mr YA’s part that Mr MK had not provided him with legal advice on 17 December 2013 in respect of the agreement. That is entirely consistent with Mr YA being aware on 17 December 2013 that Mr MK’s role was limited.

[71] It is not possible to definitively resolve some of the differences Mr YA raises within the review process under the Act. However, it seems reasonably clear that Mr MK acted on the basis that Ms RO and Mr YA wanted to reach agreement with one another, and when Mr MK had done his work, they would both have to go away to obtain advice from someone other than him before any agreement could be formalised pursuant to s 21F of the PRA.

[72] What followed from Mr YA and Mr SV from January 2014 are efforts to regroup and retrieve Mr YA’s position in the face of the various documents he had signed. It is fundamental to Mr YA’s arguments that Mr MK (and perhaps others) coerced him into signing the agreement. The evidence does not support the conclusion that Mr MK tried to overwhelm Mr YA’s free choice. That said, it is relevant to note that Committees and this Office have no ability to determine claims of duress within the framework of the Act.

[73] The fact that Mr MK referred both parties away for independent advice at the 17 December 2013 meeting recognises that some documents can have immediate

repercussions, including those that may be void for any reason such as a failure to meet the statutory requirements of the PRA. Given what Mr MK understood at the time was the couple’s desire for finality, that was fair. Although it seems from his correspondence with Mr SV that Mr MK demonstrated a preference for Ms RO’s position after the December meeting, that is not indicative of a lack of independence at the time of the meeting.


[74] In short, Mr YA’s complaint lacks proper evidential support. That is consistent with the conclusion reached by the Committee, which worked through the applicable rules and concluded accordingly. It remains the case that further action is not necessary or appropriate. The Committee’s decision is therefore confirmed.

DATED this 29th day of June 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 YA as the Applicant Mr SV as his lawyer

Mr MK as the Respondent Mr CP as a Related Person

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

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