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New Zealand Legal Complaints Review Officer |
Last Updated: 30 October 2018
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LCRO 202/2015
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CONCERNING
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an application for review pursuant to section 193 of the Lawyers and
Conveyancers Act 2006
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AND
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CONCERNING
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a determination of [Area] Standards Committee [X]
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BETWEEN
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BT
Applicant
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AND
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DG
Respondent
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The names and identifying details of the parties in this decision have been changed.
Introduction
[1] Mr BT has applied for a review of the determination by [Area] Standards Committee [X] (the Committee) to take no further action in respect of his complaints about Dr DG.
Background
[2] Mr BT was assisting Mr LF, who had been convicted of rape. Mr LF died in 2009 and Mr BT is pursuing a posthumous pardon for him.
[3] Mr BT says that on 10 July 2013 he sought advice from Dr DG as to whether or not the Court of Appeal had followed the principles established in two decisions where Dr DG had appeared for the convicted parties.
[4] Dr DG responded:
BT
Further to my fax having read the materials supplied and our 40 mins telephone conversation on Monday.
The allegations that you wish to make regarding Mr RC are serious and as yet I have not sighted any evidence to support the allegations.
Upon receipt of $5,000 plus GST ($5750) and the remaining documents that relate to the allegations I will consider and report back to you.
I will of course need an instructing solicitor which can be arranged, and I will need to send you a letter of engagement.
I enclose a deposit slip.
[5] Mr BT deposited the requested amount into Dr DG’s account.
[6] Dr DG provided a letter of engagement dated 26 August 2013.1 He also provided an invoice dated the same day.2
[7] The work undertaken by Dr DG as set out in the invoice was:
BT appeal for Mr LF Aug 26, 2013. Write opinion as to likelihood of success for new appeal for Mr LF.
Appeal dismissed by Court of Appeal, with alleged serious misbehaviours by M RC Barrister.
[case citation removed] not supplied by client.
Obtain some papers from Mr BT unsolicited in High Court in Auckland. Review those and other papers supplied, and various phone calls.
Decline to do further work unless have instructing solicitor and payment.
Note OSY Ltd prepared previous opinion which Mr BT not happy with and refunded $5,000.
Received payment $5,000 plus GST on 21 August 2013. AX instructing. LF New Appeal DG.
Mr BT’s complaints
[8] Mr BT’s complaint was received by the Lawyers Complaints Service on 27 June 2014. The outcome sought by Mr BT was:
1 The date on which the letter of engagement was provided is disputed by Mr BT.
2 The date on which the invoice was provided is also disputed by Mr BT.
My money refunded so as to finance a competent lawyer to answer my main question and Mr DG required to respond to my concerns as are expressed in the attached cover letter.
[9] The Committee acknowledged Mr BT’s complaint and recorded the following issues to be addressed distilled from Mr BT’s complaint:
- That Dr DG failed to provide the legal services required of him to Mr BT.
- That Dr DG accepted instructions to act for Mr BT despite there being no instructing solicitor at the time Dr DG accepted these instructions; and
- That Dr DG received money from Mr BT directly into his own bank account in advance of providing legal services to him.
[10] Dr DG responded to the complaints and the Complaints Service forwarded a copy of his response to Mr BT on 29 July 2014. Mr BT responded on 30 September 2014:
Dear Mr QV
Thank you for your letter dated 29 July 2014 in which you provided me with a copy of Mr DG’s response to my complaint.
I respond as follows:
(1) That Mr DG failed to provide me with the legal services required of him by me.
(2) That Mr DG received money from me paid directly into his bank account in advance of providing me with the legal services, but which were not the legal services that had been requested.
(3) That Mr DG accepted instructions to act for me despite there being no Instructing Solicitor at the time Mr DG accepted these instructions.
[11] These were a repeat of the issues which had been identified by the Committee as the issues to be addressed.
The Standards Committee determination
[12] The Committee decided to take no further action in respect of any of the issues identified by it. The relevant paragraphs of the Committee’s determination are:3
Whether Dr DG failed to provide the legal services required by Mr BT under the retainer?
11. The primary duty of a lawyer is to work to advance his or her client’s interests and, where possible, to inform his or her client of any alternative course of action. Mr BT’s purpose in requesting the opinion was to determine whether
3 Standards Committee determination 1 September 2015.
or not there were any grounds to have Mr LF’s case reheard. This was the substantive issue at the heart of Mr BT’s request and was the issue that Dr DG ultimately answered.
Whether Dr DG, acting as a barrister for Mr BT, did not have an instructing solicitor and is therefore in breach of the intervention rule as set out at Rule 14.4 of the RCCC?
[13] In response to a letter from Mr BT, Dr DG responded “that he would resend the letter of engagement which he claimed had previously been sent to Mr BT by facsimile on 26 August 2013”.
[14] The Committee determined:
22. In regards to Mr BT’s claim that Dr DG had backdated his letter of engagement, Mr BT did not adduce any evidence to verify his claim. In the absence of such evidence, the Standards Committee was not in a position to make a finding of fact one way or the other in relation to the issue raised by Mr BT.
Whether Dr DG received money from Mr BT directly into his own bank account prior to rendering an invoice to Mr BT?4
As a barrister, Dr DG is able to ask for payment directly from a client upon completing work and rendering an invoice. Whilst Dr DG technically breached the LCA by not rendering an invoice until after Mr BT had paid, the Standards Committee did not consider this minor transgression required a disciplinary response amounting to a finding of unsatisfactory conduct (as that is defined in section 12 of the LCA). In taking this view, the Standards Committee took into account that Dr DG had undertaken a considerable amount of work for Mr BT over a period of several months for which he had not received any payment.
Application for review
[15] In his application for review Mr BT said:
The decisions at paragraphs 14, 23 and 32 were all based on fabricated evidence and need to be corrected and reviewed.
[16] The paragraphs referred to were the paragraphs in which the Committee determined to take no further action in respect of each issue.
[17] In a covering letter Mr BT commented on each paragraph of the Committee’s determination. His comments in respect of the paragraphs containing the determination of each issue are:5
4 At [30].
5 As sent by Mr BT.
Paragraph 14
So on the basis of the fictional material provided by the Standards Committee they decide to take no further action in respect of this aspect of the complaint ...
Had they focused on my complaints instead of those of their own making they might have had some difficulty in dismissing them so easily. In her report of November 2009, Dame Margaret Bazley said that the Law Society needs to stop acting like a trade union for errant lawyers, she was right they need to put an end to this sort of nonsense.
Paragraph 23
Accordingly to the Standards Committee determined to take no further action in respect of this aspect of the complaint. Well of course they would why else would they have gone to such lengths to spin the evidence?
Paragraph 32
Since the Standards Committee’s Decision can now be seen for the fraud it was I cannot see how the Committee can continue to maintain their position of defending there previously flawed decision not to take further action needs to be reconsidered.
[18] These comments by Mr BT reflect his overall approach to the review.
Dr DG’s objection to jurisdiction
[19] On being advised of Mr BT’s application for review, Dr DG questioned whether this Office had jurisdiction to conduct a review. He said:
Mr BT’s power of attorney and authority to act as advocate would have expired on the death of Mr LF, you should consider whether you have jurisdiction to hear this complaint.
[20] At the direction of the Review Officer the case manager responded on 30 September 2016:
I refer to your email below. The LCRO has advised:
[21] Dr DG maintained his views as to the jurisdiction of this Office. He reiterated that Mr BT had acted as Mr LF’s attorney and the authority provided by the power of attorney ceased on Mr LF’s death.
[22] Dr DG’s reference to ss 160 and 161 of the Lawyers and Conveyancers Act 2006 (the Act) in the same letter are somewhat puzzling as Mr BT has not complained about the quantum of Dr DG’s fees.6
[23] Dr DG maintained that Mr BT had instructed him as Mr LF’s attorney and that authority had ceased on Mr LF’s death in 2009.
[24] It does not appear that this Office responded to Dr DG’s letter, but the content of the email dated 30 September 2016 is confirmed and the review has proceeded on that basis.
Review
[25] The parties were invited to consent pursuant to s 206(2) of the Act to enable the review to be completed on the material to hand. Mr BT declined.
Delegation / hearing
[26] The review progressed by way of a hearing in Auckland on 19 September 2018. The hearing was conducted by Mr Vaughan acting as a delegate appointed pursuant to cl 6 of sch 3 of the Lawyers and Conveyancers Act 2006. Mr Vaughan has been delegated to report to me and the final determination of this review as set out in this decision is made following a full consideration of all matters by me after receipt of Mr Vaughan’s report and discussion.
[27] Dr DG was not required to attend the hearing and did not exercise his right to do so. Mr BT objected to the fact that Dr DG was not required to attend and submitted that “the purpose of the hearing is to hear his arguments and debate them before the review officer”.
6 Lawyers and Conveyancers Act 2006 — s 160 concerns complaints by beneficiaries in relation to costs and s 161 relates to the stay of proceedings for recovery of costs when a complaint about fees has been lodged.
[28] Section 206(5) of the Act provides:
(5) Subject to this Act and to any rules made under this Act, the Legal Complaints Review Officer may regulate his or her procedure in such manner as he or she thinks fit.
[29] The Review Officer exercised the authority provided by that section and the review progressed as directed.
[30] Mr BT was somewhat unprepared for the hearing. He did not have a copy of the Committee’s determination or his letter of complaint and it was not clear to the Review Officer what he wished to canvas at the review hearing.
[31] In a letter to this Office dated 11 October 2015, Mr BT had asserted that the Committee had substituted complaints “of its own choosing” for the matters he had complained about. Mr Vaughan referred Mr BT to his ‘cover letter’ which accompanied his complaint and requested Mr BT to identify what issues the Committee had not addressed. During the course of the hearing Mr BT referred to various matters which are now addressed.
The Lawyers Complaints Service did not investigate Mr BT’s allegations
[32] Mr BT believes the Lawyers Complaints Service and this Office are obliged to pursue allegations made by him against Dr DG. He accused Dr DG of backdating the letter of engagement and invoice on the grounds that he says he did not receive those on 26 August 2013 as asserted by Dr DG. Mr BT says it was not until some 47 days later that Dr DG created the letter of engagement and invoice and backdated them to 26 August to support his assertions.
[33] The certificate by Mr TE that he had sighted the original email from Dr DG to Mr BT dated 7 October 2013, to which the letter of engagement and invoice were attached, is not evidence that Dr DG had not sent them to Mr BT on 26 August as he said he had. It is evidence the documents were sent or re-sent on 7 October.
[34] At the review hearing Mr BT submitted that the Complaints Service had a duty to investigate his allegations, citing ss 122 and 123 of the Act to support his expectations.
[35] Those sections require the Complaints Service to deal with complaints “in a fair, efficient and effective manner”.7 The requirement to be fair, applies equally to lawyers and complainants. Mr BT does not seem to recognise that.
Paragraph 33 Standards Committee Determination
[36] Paragraph 33 of the Committee’s Determination reads:
Throughout his correspondence Mr BT appeared to want the Lawyers Complaints Service (LCS) to look at various issues he had with the conviction of Mr LF and Mr LF’s subsequent hearings. However, the jurisdiction of the LCS does not extend beyond the professional conduct of the lawyer complained about. It would have been inappropriate for the Standards Committee to have commented on any issue outside of the professional conduct of Dr DG.
[37] It is somewhat difficult to ascertain what Mr BT’s dissatisfaction with the content of this paragraph is. He seems to expect the Committee to comment on the legal issues including the correctness of Dr DG’s opinion and Dr DG’s response to Mr BT’s requests for an opinion as to the procedure followed by the Court of Appeal.
[38] The Committee’s statement that “it would have been inappropriate for” the Committee to do so is correct. Mr BT wanted to challenge the Court of Appeal judgment. In his 10 September 2013 response to Mr BT, Dr DG provided his view as to the best way to proceed. In a subsequent letter dated 20 February 2014, he responded directly to Mr BT’s request.
[39] Because Mr BT did not agree with Dr DG’s advice, he says that Dr DG lied. Mr BT’s complaint lacks logic and any basis on which an adverse professional disciplinary finding would follow.
Fees
[40] On several occasions during the review hearing Mr BT commented about the quantum of Dr DG’’s fees. He then referred to advice he had received from a [Town] lawyer whose hourly rate was $350 and who, Mr BT considers, provided superior advice to that given by Dr DG.
[41] At section 5 of the complaint form, Mr BT wrote:8
See letter dated 10 July 2013. I paid Mr DG $5750 to acquire a legal opinion as to the credibility of the decision of the Court of Appeal dated 23 April 2007. Was inconsistent with the Statute.
[42] Whilst Dr DG’s fee could have been cancelled or reduced following a finding of unsatisfactory conduct (based on the competence of Dr DG’s advice) Mr BT did not complain about the quantum of Dr DG’s fee. Indeed, his payment of the account would indicate that at that stage, he was satisfied with Dr DG’s advice.
[43] Section 194 of the Act restricts the review by this Office to a determination, requirement, or order made, or direction given by a Standards Committee in relation to a complaint or on a matter arising from a complaint.
[44] Mr BT did not complain that Dr DG had charged too much for the work carried out by him. He simply alleges that Dr DG did not provide an opinion that was acceptable to him. That cannot be converted to a complaint about the amount of Dr DG’s fee.
Did Dr DG have an instructing solicitor?
[45] Mr BT asserted that Dr DG had not arranged a reverse brief from Mr AX as Dr DG asserted. In support of this allegation Mr BT produced an email from Mr AX in which Mr AX says:
BT, despite your community law offices opinion I have no information to give you.
[46] Mr BT had an expectation that the Lawyers Complaints Service should investigate Mr AX’s records on the basis of his allegations to ascertain the date on which Dr DG had arranged the reverse brief. He alleges Dr DG had never arranged the brief, and that, again, Dr DG was lying when he said he had.
[47] The Complaints Service must form a view as to where to direct resources. Little turns on the issue raised by Mr BT. Mr BT has a view that whatever Dr DG has said constitutes a lie. That does not provide a reason for the Committee to pursue Mr BT’s allegations.
Overview
[48] Mr BT has produced nothing to support his various allegations.
8 Section 5 refers to costs complaints.
[49] Toward the end of the hearing, Mr Vaughan asked Mr BT to sum up the issues with regard to the Committee’s investigation and decision which he objected to. Mr BT replied that the “whole vein of the Standards Committee [determination] was to side-line the issues raised by [Mr BT] and to whitewash anything that [Dr DG] had done”.
[50] To his mind everything said or done by Dr DG amounted to a lie.
[51] There is no better example of Mr BT’s mind-set than to record his comment when discussing the response from Dr DG to Mr BT’s request for an opinion as to whether or not the Court of Appeal had followed the correct approach as established in R v Smith and R v Taito. Mr BT asserted Dr DG was lying.
[52] Mr Vaughan suggested to Mr BT that Dr DG had provided his opinion in his letter to Mr BT 20 February 2014 in which Dr DG said:
Mr LF received a rehearing in [the correct] way, what went wrong was not that the court followed the wrong procedure ... Even a one minute oral hearing is enough for a court to have correctly followed the law as set out in Smith.
[53] Mr BT said that Dr DG was wrong and had lied.
[54] This was the standard of proof adopted throughout the review by Mr BT: if he disagreed with what was being said, it constituted a lie.
[55] Mr BT then proceeded to accuse Mr Vaughan of being biased and of rejecting everything put forward by him. At that point Mr Vaughan terminated the hearing.9
[56] Mr Vaughan had rejected many matters which Mr BT endeavoured to refer to at the review hearing. These were matters that had no relevance to the complaint against Dr DG and Mr Vaughan declined to allow time to be expended by Mr BT addressing these.
[57] An example of one such item is a letter from the [Prime Minister] to Mr BT in response to correspondence from him. The letter related to Mr BT’s attempts to raise various issues with the [then] Prime Minister about Mr LF’s case.
[58] The letter had no bearing at all on the complaints against Dr DG. Mr Vaughan declined to allow Mr BT to spend time talking to the content of this letter and, as similar
9 The hearing had run for some one and a quarter hours during which all substantive issues had been addressed.
events occurred on several occasions, Mr BT would have formed the view that much of what he wanted to talk about was rejected by Mr Vaughan.
[59] That does not evidence bias. It was a desire by Mr Vaughan to spend the time only addressing and discussing matters of relevance.
Decision
Having considered all of the matters raised by Mr BT on review, the determination of the Committee to take no further action in respect of Mr BT’s complaints is confirmed pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006.
DATED this 1st day of October 2018
D Thresher
Legal Complaints Review Officer
In accordance with s 213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:
Mr BT as the Applicant
Dr DG as the Respondent [Area] Standards Committee [X] New Zealand Law Society
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URL: http://www.nzlii.org/nz/cases/NZLCRO/2018/89.html