QN v WM [2019] NZLCRO 113 (8 August 2019)

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	LCRO 67/2019
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	QN Applicant
AND	WM and FR _Respondents

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

[1] Mr QN has applied for a review of a decision by the [Area] Standards Committee [X] (the Committee) to take no further action in respect of his complaint concerning conduct on the part of Mr WM and Ms FR (lawyers), pursuant to s 138(2) of the Lawyers and Conveyancers Act 2006 (the Act).

[2] At the relevant times, the lawyers were in practice with TV Lawyers (TVL). The lawyers acted for Mr QN’s father, RN, in his personal affairs and assisted him in arranging the affairs of the family trust he had settled (the Trust). It is understood that RN appointed Mr QN as one of the original trustees of the Trust, and that Mr QN was also named as a beneficiary, along with his siblings and their children. The trustees varied the Trust at some point after April 2016, when RN rearranged matters so that his grandchildren would receive equal benefits when the time came to wind up the Trust.

[3] Mr QN has a brother, ZN. In March 2017 ZN commenced proceedings against the trustees of the Trust (the proceedings). The proceedings were still on foot when RN passed away in March 2018. Mr QN and his sister BN were appointed as RN’s executors. The proceedings extended to them as trustees and executors of RN’s estate. I infer ZN was not happy with the way RN had arranged his affairs, or those of the Trust. Although there is little in the way of detail about the proceedings in the materials available on review, there are various references to them. They are understood to be CIV-YYYY-XXX-XXX and CIV-YYYY-XXX-XXXX.

19 November 2018 was introduced on the basis that the information required from the lawyers had been requested in the context of proceedings that Mr QN is a party to (as a trustee of the Trust, and an executor and trustee of RN’s estate). Mr QN was vague about precisely why he wanted information, but he says several times in the materials that the information he had requested from the lawyers was important to him for the purpose of the High Court proceedings. By 6 April 2019, Mr QN had disclosed that obtaining the lawyer’s evidence was his primary purpose, and that he also intended to incorporate “the outcome of the Law Society’s deliberations and findings” in affidavits to be filed in the High Court in relation to the two proceedings mentioned above.

[5] Mr QN’s complaint to the NZLS was twofold. The first limb of his complaint was that the lawyers had sent documents to ZN’s lawyer without instructions to do so, thereby allegedly betraying RN’s confidence in breach of r 8 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules). ZN had obtained a redacted copy of RN’s 2016 will (which had been superseded by the will dated 19 February 2018 which is presumed to have been admitted to probate). Mr QN’s position is that RN had told him he had not instructed the lawyers to disclose his 2016 will to ZN’s lawyer. However, as Mr QN’s evidence is hearsay, and RN is no longer available to give evidence, the next best evidence is whatever the lawyers might be able to say.

[6] Unaware at the time of Mr QN’s intentions over the information they had been asked to provide, the lawyers’ position was that, while they had no specific record of the instruction having been given, their usual practice was to obtain instructions before disclosing client information. Ms FR says that as she and Mr WM had acted for the

trustees of the trust and for RN while he was alive, they were generally cooperative with Mr QN’s requests of them for information.

[8] Mr QN was also concerned that the lawyers had disclosed a letter that had been sent to the trustees dated 30 January 2018 to ZN’s lawyer, also without instructions. The lawyers’ position was that they had checked, and as far as they could tell, they probably had not disclosed any copies of the letter. They also observed that RN had a hard copy of the letter.

[9] On review, Mr QN wants certainty, and the lawyers’ response did not provide him with that.

[10] The second limb of Mr QN’s complaint was that when he had asked the lawyers for information about the will and the letter, they had been slow in replying. Added to that, Mr QN was not satisfied with the replies. In essence, he did not get the answers he wanted, as fast as he wanted, in the way he wanted them presented. It can be inferred from the materials that Mr QN’s overall objective was to try to shift the balance of probabilities in favour of the position he sought to advance before the High Court.

[11] The Committee made its decision on 8 April 2019, based on the information the parties had provided.1 The Committee was satisfied that the lawyers had complied with their obligations under r 7.2 of the Rules, recording that it:

was satisfied that Mr WM and Ms FR had responded to the requests to the best of their ability. It is clear from their responses that they believe that RN gave verbal consent to the release of the redacted will, but due to the passage of time cannot say with certainty as there is no file note or written record. As to the release of the letter, they have said that there is no record of it being sent by any person at TVL.

for the purpose of current court proceedings. A standards committee has a disciplinary role to deal with complaints about lawyers’ conduct. It is not intended to be a process for evidence gathering for other proceedings. If the disclosure of the documents is at issue in the court proceedings, there are procedures available for the gathering of evidence, such as administering interrogatories. The Committee considered that it was not appropriate to use the disciplinary process for this purpose.

1 The lawyers’ reply to NZLS is dated 5 February 2019. Mr QN's response is dated 13 February

[13] I note at this point that s 205 of the Act provides this Office with a statutory power that is not available to Committees. Section 205 says that a Legal Complaints Review Officer (LCRO) may strike out, in whole or in part, an application for review if the LCRO is satisfied that the application for review discloses no reasonable cause of action, or is an abuse of process. I will return to those matters below.

[14] With respect to the second element of Mr QN’s complaint, the Committee considered whether the lawyers had complied with their obligations of confidence they owed to RN personally and to the Trust.

[15] It is not entirely clear from the materials available on review whether, as well as being the settlor of the Trust, RN was also a trustee. Either way, he had a copy of a letter sent on behalf of QN’s son JN to the trustees of the trust dated 30 January 2018, marked “without prejudice”. That letter refers to a settlement proposal Mr QN had outlined to the Trust’s lawyer the previous week. It seems from Mr QN’s complaint that he is particularly sensitive to the fact that the letter made its way to ZN. It is inferred that in the course of the High Court proceeding, ZN was making the most of the information he had, to improve his position against the trustees.

[16] The materials give rise to concern over Mr QN’s motivations for making a complaint about the lawyers.

[17] Breach of a duty of confidence is a serious allegation. Serious allegations require convincing evidence. Mr QN provided the Committee with no such evidence. All he knows for certain is that ZN has a copy of the letter. The general proposition that ZN must have got that from someone is not sufficient to support a complaint that the lawyers breached their duty of confidence. It is not a purpose of the statutory complaints process that it be used as a tool of inquiry for parties to litigation.

[19] There is no substance to the allegation of breach of confidence. Rather than focusing on the conduct that was of concern to him in the complaint process, on review Mr QN’s focus is on the Committee’s decision. That does not assist him in substantiating the allegation.

i. the LCRO agrees that the complainant asked TVL whether they had authority to release the will and whether the redactions were approved.

iii. the LCRO rule that TVL therefore did not promptly reply to the request for information and were deliberately evasive.

v. that TVL did not reply to questions and as a result the complainant placed the matter before the NZ Law Society. The complainant incurred costs and these costs should be met by TVL.

[21] As to the first, second and third points, it is unnecessary for this Office to agree or disagree about what Mr QN asked the lawyers and what they said in reply. The questions Mr QN instructed his lawyer to put to the lawyers are contained in emails Mr QN’s lawyer sent to the lawyers. The lawyers’ written replies are their answers. There is no basis on which to say the lawyers were deliberately evasive in their replies. While Mr QN is obviously looking for simple answers, the lawyers are under no obligation to provide simple yes and no answers to him in a vacuum.

[22] Litigation that deals with the posthumous effects of a parent’s affairs when the parent is no longer around can be a minefield for the lawyer who acted for the parent. The lawyers’ position is that they owe obligations to RN and the trustees (whoever they may be at a particular time) because RN and the Trust (which acts though its trustees) are former clients. Navigating their obligations after RN had passed away was complicated by the potential conflicts that faced Mr QN, given the wide-ranging obligations that lawyers owe to their clients.

[23] In the circumstances, there is nothing inappropriate about the lawyers having requested background information, such as a copy of the statement of claim, to inform their responses. The lawyers were not obliged to fall on their own sword simply to assist Mr QN, nor were they obliged to frame their replies to Mr QN in a way that suited his convenience. It would be far more troubling if the lawyers had made something up to suit Mr QN’s convenience.

[24] There is no proper basis on which to say that the lawyers did not act promptly to respond to Mr QN’s requests for information. It is deeply troubling that Mr QN considered it appropriate to engage the complaint process under the Act to try and leverage the replies he wanted more quickly so that he could put them into evidence in the High Court according to the Court’s timetable.

[25] Mr QN is critical of the lawyers for responding to his concerns after he made his complaint on 19 November 2018. Mr WM’s formal reply to Mr QN’s lawyers on his firm’s letterhead is also dated 19 November 2018. The notice NZLS sent to the

lawyers providing formal notice of Mr QN’s complaint is dated 18 December 2018, a month after Mr QN’s complaint. Mr QN’s criticism in this regard lacks substance.

[26] It is evident from the materials available on review that the lawyers responded to the enquiries made of them appropriately, as promptly as they were able to. There is simply no basis on which to advance the proposition that their conduct was unsatisfactory according to any of the definitions set out in the Act.

[27] None of the criticisms made by Mr QN in his application for review amount to good reason to reach any different conclusion from the Committee,2 and there is no reason to order the lawyers to pay costs.

[28] Having considered all of the material available on review, I am satisfied that

(a) discloses no reasonable cause of action with respect to the allegation that the lawyers may have breached RN’s confidence or been less than prompt in responding to his requests for information; and

[29] Mr QN’s application for review is struck out pursuant to s 205(1)(a) and s 205(1)(d) of the Act.

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

New Zealand Legal Complaints Review Officer

QN v WM [2019] NZLCRO 113 (8 August 2019)