FL v WZ [2019] NZLCRO 112 (15 August 2019)

Last Updated: 5 October 2019

LCRO 090/2016

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

_AND

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

BETWEEN FL

_Applicant

AND WZ

_Respondent

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

_DECISION

Introduction

[1] Ms FL has applied for a review of a decision by the Wellington Standards Committee 1 (the Committee) to take no further action in respect of her complaint concerning the conduct of the respondent, Ms WZ.

Background

[2] Ms FL was employed as an [employee] in [Organisation A].

[3] During the course of her employment, Ms FL considered that she had been subjected to a prolonged period of bullying in the workplace. She identified two senior members of [Organisation A] as being the primary instigators of what she perceived to be a deliberate campaign to unsettle her in the workplace.

[4] On 12 February 2014, Ms FL instructed Ms WZ of [Law Firm A] to act for her in relation to the developing employment dispute.

[5] [Organisation A] commenced an internal investigation into Ms FL’s complaints

(the investigation).

[6] On 9 July 2014, [Organisation A] provided Ms FL with a draft report in which it recorded the results of its investigation.

[7] Ms FL terminated Ms WZ’s retainer on 11 July 2014.

[8] Ms WZ rendered two invoices to Ms FL, one in the sum of $5,000 plus GST, a second, in the sum of $7,500 plus GST.

The complaint and the Standards Committee decision

[9] Ms FL lodged a complaint with the New Zealand Law Society’s Lawyers Complaints Service (the Complaints Service) on 11 September 2015. Her complaint was that Ms WZ had:

(a) failed to follow instructions to obtain important documents;

(b) worked on her file for a protracted period of time without instructions, whilst claiming that she was too busy to meet with or speak to Ms FL;

(c) overcharged;

(d) failed to obtain important material vital to the case; and

(e) concealed documents.

[10] Ms WZ was invited to provide a response to Ms FL’s complaint. She submitted that:

(a) she had acted at all times on Ms FL’s instructions;

(b) no information was withheld from Ms FL;

(c) no separate agreements had been entered into with any party; (d) all reasonable efforts had been made to secure documents;

(e) she had maintained regular contact with Ms FL throughout the course of the retainer;

(f) she had diligently managed Ms FL’s file;

(g) fees charged were fair and reasonable, and a substantial component of the fees had been written off;

(h) no agreement had ever been made with Mr DL, [Organisation A], or any other individual, to refrain from pursuing the obtaining of important material on Ms FL’s behalf; and

(i) no material had been kept from Ms FL.

[11] The Committee identified the key issues for consideration as being: (a) did Ms WZ fail to follow Ms FL’s instructions;

(b) were Ms WZ’s fees fair and reasonable; and

(c) did Ms WZ breach any of her professional obligations in relation to the other aspects of Ms FL’s complaint?

[12] The Committee delivered its decision on 16 March 2016 and determined, pursuant to s 138(2) of the Lawyers and Conveyancers Act 2006 (the Act), that no further action on the complaint was necessary or appropriate.

[13] In reaching that decision, the Committee concluded that:

(a) it was satisfied that Ms WZ had not breached her professional obligations in relation to the allegation that she had failed to adequately follow Ms FL’s instructions;

(b) it was appropriate for Ms WZ to have advised Ms FL to engage with [Organisation A] through its investigation, given the initial difficulty in obtaining evidence to support Ms FL’s allegations;

(c) correspondence from Ms WZ’s files indicated that Ms FL agreed with the advice provided by Ms WZ in relation to the investigation and that she had, in the early stages of the matter, expressed satisfaction with Ms WZ’s services;

(d) it did not conclude that Ms WZ had failed to take additional allegations that were made during the investigation seriously;

(e) the work completed by Ms WZ in relation to Ms FL’s allegations was commensurate with Ms WZ’s professional obligations;

(f) Ms WZ had followed instructions; and

(g) fees charged were fair and reasonable.

Application for review

[14] Ms FL filed an application for review on 28 April 2016. [15] She submits that:

(a) the Committee’s decision was not rational;

(b) the decision failed to take account of the evidence provided;

(c) the Committee had failed to consider that Ms WZ had left messages for her on an incorrect phone number and that these messages had been brought to the attention of the opposing party who had used the information against her; and

(d) requests made by Ms WZ to secure her human resources file were seriously inadequate.

[16] Ms WZ’s counsel responded to Ms FL’s review application. [17] It was submitted for Ms WZ that:

(a) Ms WZ had provided a comprehensive response to Ms FL’s complaints

in the submissions provided to the Committee;

(b) Ms FL’s application for review raised a number of new issues;

(c) It was difficult to identify the precise nature of Ms FL’s complaints; (d) Ms WZ had difficulty contacting Ms FL on a number of occasions;

(e) Ms WZ does not recall leaving messages for Ms FL which referenced substantive advice;

(f) Ms WZ had conscientiously followed Ms FL’s instructions; and

(g) An examination of Ms WZ’s file gives clear indication that Ms WZ had provided Ms FL with a very competent level of representation.

Hearing

[18] An applicant-only hearing was conducted on Friday 21 June 2019.

[19] At the conclusion of that hearing, I summarised for Ms FL the submissions she had advanced in the course of the hearing and invited her to confirm that the summary provided an accurate account of her position.

[20] Ms FL identified the issues of most importance to her as being concern that

Ms WZ had failed to:

(a) sufficiently follow up on instructions that her computer had been tampered with;

(b) inform her of the impending mediation; and

(c) disclose her close association with a member of the [Organisation A]

staff.

Nature and scope of review

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

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

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

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

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

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

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

coming to his or her own view of the fairness of the substance and process of a

Committee’s determination.

[23] 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:

(a) consider all of the available material afresh, including the Committee’s

decision; and

(b) provide an independent opinion based on those materials.

Discussion

[24] The issues to be addressed on review are:

(a) Did Ms WZ fail to follow Ms FL’s instructions?

(b) Did Ms WZ fail to take steps to obtain documents that were critical to

Ms FL’s case?

(c) Did Ms WZ fail to respond to enquiries from Ms FL?

(d) Did Ms WZ fail to disclose a relationship with a member of the

[Organisation A] staff?

(e) Did Ms FL raise further issues in the course of the review that need to be addressed on review?

(f) Were the fees charged by Ms WZ fair and reasonable?

Analysis

General comments

[25] Before addressing the issues identified above, it is necessary to comment on the manner in which Ms FL has advanced her review application.

[26] Her application is supported by a submission of some 23 pages.

[27] That submission traverses, in detail, Ms FL’s view that the investigation conducted by [Organisation A] was materially tainted by the reliance [Organisation A] placed on documents that had been forged. The submission is wide ranging and

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

addresses concerns that Ms FL had regarding a number of the individuals who were associated with [Organisation A]’s investigation into her complaints.

[28] An unfortunate consequence of Ms FL advancing her submissions in the form of a broad narrative of events, is that it can become difficult to isolate from those extensive submissions, the issues that have direct relevance to the review.

[29] Permeating Ms FL’s submissions was argument that she had been the victim of what could reasonably be described as a criminal conspiracy, a conspiracy which she maintains with a firm conviction has been conclusively established.

[30] A singular feature of Ms FL’s submissions, is the extent to which she frequently makes wide ranging allegations of improper conduct and then proceeds to elaborate on the consequences which she believes have flowed from that conduct.

[31] I give but three examples of many. She contends that comments made by [Organisation A]’s lawyer were “based on faked and forged documents”. She suggests that “it has eventually come to light how the hijacking of the investigation was done”. She submits that it was clear that her human resources file contained forged documents.

[32] To the extent that these wide-ranging allegations of fraudulent conduct impact on the specific complaints made against Ms WZ, it is contended by Ms FL that Ms WZ failed to be sufficiently assertive in taking the necessary steps to secure documentation that would have provided evidence of the fraud she believed had taken place.

[33] Further, she alleges that Ms WZ’s failure to competently advance her case, encouraged the person she contended was responsible for forging documents that were relied on in the course of the employment enquiry, to have free reign to complete what Ms FL describes as “the stitch up”.

[34] Ms FL’s criticisms of Ms WZ are not confined to accusations of incompetent representation. She says that Ms WZ was communicating directly with individuals from [Organisation A] who were at the centre of the dispute and leaving messages with those individuals, which disclosed Ms WZ’s thoughts both about Ms FL and her case.

[35] This is the foundation on which Ms FL builds her argument that Ms WZ failed to competently represent her.

[36] It is a fragile foundation. Ms FL has so far been unable to substantiate her core allegation that the investigation was contaminated by the deliberate falsification of material documents.

[37] She has taken steps in the Employment Relations Authority, the Employment Court, the Human Rights Review Tribunal and the High Court to establish that [Organisation A]’s investigation was conducted in bad faith. At the review hearing, Ms FL confirmed that she currently has proceedings before the High Court. She accepted that it was in that forum that her allegations of fraudulent conduct would be fully tested.

[38] In my view, Ms FL’s criticisms of Ms WZ are significantly compromised, by the extent to which those criticisms demand acceptance of Ms FL’s view, that she was the victim of a flawed and fraudulent investigation.

[39] In what follows, I will not canvass or mention every element and aspect of the materials that have been put before me by the parties.

[40] It is only right that parties should be able to understand what has led a court or tribunal to the outcome reached. But that does not mean that a decision writer is obliged to refer to, let alone discuss, every aspect of each party’s case.

[41] This Office has previously said on this topic:3

[33] Mr ZA submits there is a mandatory obligation to consider and respond to every submission made by a complainant, or, in this case, an applicant. By not doing so, he submits, the Standards Committee breached the requirements of natural justice. I do not agree. In R v Nakhla the Court said:

As to the complaints in the motion that the Court did not deal with certain submissions ... it may be observed that a belief on the part of counsel ... that his argument has not been fully understood or adequately discussed is by no means uncommon ... The Court is not obliged in giving its reasons for judgment to discuss every aspect of argument.

[34] The Court went on to refer to the observations of Diplock LJ in Hardwick

Game Farm v Suffolk Agricultural Poultry Producers Assn Ltd:

In giving its reasons for judgment [a Court] is not composing a general lecture upon a legal topic: it is setting out as succinctly as the time available for preparation permits, those propositions of law which it considers are correct, and which are essential steps in the decision it has reached in the particular case. It is not obliged to state an answer to the arguments against the propositions of law which it accepts as correct and relevant to its decision whether such arguments have been addressed by counsel or not.

[35] Those principles apply equally, if not more so, to determinations by a Standards Committee (and this Office) where allegations and submissions by (in particular) complainants, are often made in a ‘scatter-gun’ manner and often without merit or substance. It would be an appalling misuse of the resources of Standards Committees and this Office, if the requirement is to specifically address every allegation and submission.

3 ZA v YB LCRO 39/2016 (15 February 2017), citing R v Nakhla (No 2) [1974] 1 NZLR 453 (CA) at 456 and Hardwick Game Farm v Suffolk Agricultural Poultry Producers Assn Ltd [1966] 1 All ER 309 at 338 (CA).

Did Ms WZ fail to follow instructions?

[42] In responding to the complaint, Ms WZ provided a copy of her file. The file comprised some 958 pages of documentation.

[43] I have read the file.

[44] The file includes a comprehensive chronology in which Ms WZ provides a detailed account of her interactions with Ms FL. What the chronology reflects is a very high level of engagement between lawyer and client throughout the retainer. That level of engagement is reinforced by the time records provided by Ms WZ. Those records (which I have in significant part cross referenced to the material on Ms WZ’s file) reinforce my view that Ms WZ had conscientiously communicated with Ms FL throughout the retainer.

[45] It is important to note at the outset that it is unrealistic to have expectation that the full flavour of a litigation case can be distilled simply from an examination of a practitioner’s file.

[46] In Auckland Standards Committee 3 v Castles, the Lawyers and Conveyancers Disciplinary Tribunal observed it was not the Tribunal’s role to closely analyse and second-guess every move of counsel during each piece of litigation.4 The Tribunal noted that it was the duty of the Tribunal, when considering a complaint that a lawyer had failed to adequately advance a client’s case, to take an overview and to look at patterns of behaviour.

[47] Having carefully considered Ms FL’s complaint that Ms WZ failed to follow instructions, and having referenced those criticisms to the account of events as recorded in Ms WZ’s file, I am not persuaded that Ms WZ failed to follow her client’s instructions.

[48] I am satisfied that Ms WZ:

(a) made strenuous efforts to obtain an email that had allegedly been sent by a union organiser; and

(b) was active in endeavouring to source documents that Ms FL considered had been fabricated.

4 Auckland Standards Committee 3 v Castles [2013] NZLCDT 53 at [177].

[49] I am also satisfied that Ms WZ pursued all available avenues that were realistically available to her in endeavouring to establish whether Ms FL’s computer had been tampered with.

[50] This was a difficult issue to address. Ms FL had no hard evidence to substantiate her belief that there had been interference with her computer. She had discussed difficulties she had experienced in logging on to her computer with a friend who worked in IT. She had apparently been told that the problems she was experiencing were indicative of an amateurish attempt to install spyware software on her computer.

[51] Ms FL raised concerns with Ms WZ that her computer may have been tampered with on 13 May 2014.

[52] A lawyer from Ms WZ’s office spoke to an IT service provider and sought clarification as to the methods that could be deployed to install spyware on a computer. The advice provided was that spyware could be remotely loaded on a server.

[53] On 20 May 2014, Ms WZ wrote to [Organisation A]’s lawyer to advise that Ms FL had concerns that her computer had been tampered with. Ms WZ asked [Organisation A] to confirm that the hard drive for Ms FL’s computer would be preserved and to arrange for an independent forensic examination of the computer.

[54] This request was met with a robust response from [Organisation A] in which the lawyer for [Organisation A] advised that:

(a) [Organisation A]’s IT department had checked the computer and hard drive and confirmed that no spyware was located;

(b) it rejected the suggestion that individuals within [Organisation A] had endeavoured to monitor Ms FL’s computer; and

(c) such suggestion had potential to damage the trust and confidence in the employment relationship.

[55] It was difficult to see what more Ms WZ could have done.

[56] The evidence that Ms FL relied on to substantiate her allegation of tampering fell well short of meeting the evidential standard necessary, such as could have reasonably or responsibly have encouraged Ms WZ to contemplate taking further legal steps to compel [Organisation A] to submit to an independent review of its IT systems.

Did Ms WZ fail to take steps to obtain documents that were significant to Ms FL’s

case?

[57] It was Ms FL’s view (a view which solidified with the passage of time), that [Organisation A] was refusing to provide her with certain documents and relying on documentation that had been forged.

[58] She submits that she did not become fully aware of the extent of [Organisation

A]’s deception until after she had left [Organisation A].

[59] Ms FL argues that Ms WZ’s efforts to obtain various documents, including her human resources file, were “seriously inadequate, well beyond the point of incompetent”.

[60] It is important to reiterate that Ms FL’s complaint that Ms WZ failed to be sufficiently assertive in taking steps to obtain various documents, is to be considered in the context of argument advanced by Ms FL that staff at [Organisation A] were falsifying documents, producing fake files and tampering with information on her human resources file.

[61] Having carefully considered Ms FL’s submissions, and closely examined Ms WZ’s file, I am not persuaded that Ms WZ failed to take sufficient steps to obtain information.

[62] [Organisation A] disputed that some of the documentation sought by Ms FL

existed.

[63] Ms WZ’s correspondence with [Organisation A]’s counsel, particularly when addressing Ms FL’s serious concerns that she was being unfairly treated, is assertive and forthright.

[64] I do not accept that Ms WZ failed to take sufficient steps to obtain the documents that Ms FL believed were in existence.

Did Ms WZ fail to respond to inquiries from Ms FL?

[65] Ms FL contends that Ms WZ was difficult to contact on occasions.

[66] Ms WZ maintains that there were periods of time when she found it difficult to contact Ms FL.

[67] My examination of Ms WZ’s file has, as noted above, led me to conclude that there had been a high level of engagement and communication between Ms WZ and Ms FL throughout the retainer.

[68] I accept that on occasions, Ms FL may have had difficulty contacting Ms WZ, but it is inevitably the case that, on occasions, a lawyer will be unable to respond immediately to a client because of competing commitments.

[69] But I see no evidence of any persistent failure on Ms WZ’s part to communicate with Ms FL of sufficient seriousness, such as would merit a consideration as to whether the failure merited a disciplinary response.

Did Ms WZ fail to disclose a relationship with a member of [Organisation A] Staff?

[70] Ms FL contends that Ms WZ had a close personal friendship with a member of [Organisation A] staff (Mr PK) and that she had failed to disclose this relationship to her.

[71] In advancing this concern, Ms FL suggests that Ms WZ’s independence was

compromised by the relationship.

[72] With every respect to Ms FL, I had some difficulty at the review hearing arriving at a clear understanding as to precisely what the nature of this objection was.

[73] Ms FL acknowledges that Mr PK, who she had described as a supportive colleague, had recommended that she engage Ms WZ to represent her in her dispute with [Organisation A].

[74] Ms FL says that it later came to her attention that Ms WZ was close friends with Mr PK and his wife.

[75] Ms WZ says that she explained to Ms FL at the outset that she only had a modest acquaintanceship with Mr PK, but had, subsequent to taking on the retainer, became neighbours with Mr PK when she was renting a property during a time that her home was being renovated. Ms WZ rejects suggestion that her relationship with Mr PK compromised her ability to provide Ms FL with robust and independent representation.

[76] Ms FL considered that Mr PK enjoyed a close relationship with the individual who she believed was responsible for forging documents at [Organisation A]. She suggests that Mr PK appeared to have been “influencing” Ms WZ.

[77] It was Mr PK who suggested to Ms FL that she engage Ms WZ.

[78] There is no evidence to indicate that Ms WZ was initially aware that Mr PK

had recommended her to Ms FL.

[79] I can see no reason as to why Ms WZ should have taken steps to recuse herself from acting for Ms FL, once it became apparent to her that Mr PK had recommended her.

[80] Whilst Ms FL argues for the existence of a close relationship between Mr PK and Ms WZ, that is denied by Ms WZ and there is no independent evidence to corroborate either party’s positions.

[81] Ms FL took the argument a step further at the review hearing and suggested that her choice of lawyer had been manipulated by [Organisation A]. She suggested that Mr PK had recommended Ms WZ to her, with the express purpose of having her engage a lawyer who was not just supportive of [Organisation A], but was prepared to be compliant in cooperating with “the bogus investigation” conducted by [Organisation A].

[82] I do not accept the Machiavellian construction that Ms FL has placed on these events. It is argument that relies entirely in its establishment on Ms FL’s personal views. It is argument that demands acceptance of the surprising proposition that Ms WZ took on the retainer not with purpose as her fundamental obligations demanded (to vigorously represent her client), but instead with purpose to act against Ms FL’s interests. It is argument that does not sit comfortably alongside the evidence of Ms WZ’s extensive file, a file which gives every indication of Ms WZ promoting, as she was required to do, Ms FL’s case with energy and determination.

Did Ms FL raise further issues in the course of the review that needed to be addressed on review?

[83] Ms FL did not make complaint that Ms WZ had failed to advise her of an impending mediation when first filing her complaint with the Complaints Service.

[84] As the complaint was not put before the Committee, I am not required to address it on review. However, because the issue was identified by Ms FL as being of considerable importance to her, I would simply make the following observations.

[85] It is apparent from the file that as the dispute progressed, the parties, as is commonly the case in employment disputes, were turning their minds to the question as to whether mediation should be attempted.

[86] A useful summary of the steps taken by the parties towards having the dispute addressed at mediation is set out in a determination of the Employment Relations Authority, issued on 21 December 2016.5

[87] That decision notes that following release by [Organisation A] of its draft report recording the outcome of its investigation, Ms FL had advised the [Head of Organisation A], that she had terminated Ms WZ’s retainer.

[88] Following receipt of that advice, [Organisation A]’s lawyer contacted Ms WZ

on 14 July 2014 and suggested that the parties attend mediation.

[89] On 15 July 2014, Ms WZ advised [Organisation A] that her retainer had been terminated.

[90] [Organisation A]’s lawyer then contacted Ms FL’s newly instructed counsel and raised the possibility of mediation.

[91] Ms FL’s new lawyer advised [Organisation A] on 16 July 2014 that Ms FL had agreed to attend mediation.

[92] Set against that background, I do not consider that Ms WZ failed to keep Ms

FL sufficiently informed concerning the decision to attempt mediation.

Were the fees charged by Ms WZ fair and reasonable?

[93] Ms FL indicated that she did not wish to advance the fee matter further on review.

Conclusion

[94] I have given careful consideration to the extensive submissions filed, and the submissions advanced on review.

[95] Having, as I am required to do, brought a fresh and independent examination to the matters advanced on review, I consider that the Committee was correct to conclude that it was appropriate that no further action be taken in respect to each of Ms

_{FL’s complaints.}

5 [Case citation removed].

Anonymised publication

[96] Pursuant to s 206(4) of the Act, I direct that this decision be published so as to be accessible to the wider profession in a form anonymising the parties and bereft of anything as might lead to their identification.

Decision

Pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006, the decision of the

Standards Committee is confirmed.

_{DATED this 15}TH _{day of August 2019}

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:

Ms FL as the Applicant

Ms WZ as the Respondent

Mr FR as the Respondent’s Representative

Ms QT as the Related Person

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