RA v LO [2019] NZLCRO 116 (23 September 2019)

	Home \| Databases \| WorldLII \| Search \| Feedback New Zealand Legal Complaints Review Officer

	LCRO 13/2019
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	RA Applicant
AND	LO _Respondent

[1] Ms RA has applied to review a decision by the [Area] Standards Committee [X] to take no further action in respect of her complaint concerning the conduct of the respondent, Ms LO.

[2] Ms RA had been in a long-term relationship with Mr A. The relationship came to an end in June 2017.

[3] Following the termination of the relationship, Mr A received some correspondence which was critical of him. Similar correspondence was forwarded to Mr A’s employer.

[4] Mr A assumed that Ms RA had been responsible for the correspondence. He, together with his then partner, made applications to the court for a protection order against Ms RA.

[6] The application brought by Mr A’s partner was withdrawn. There was no jurisdictional basis for Mr A’s partner to bring an application for a protection order to be made against Ms RA.

[7] Mr A’s protection order application was set down for hearing in the Family

[8] Prior to the hearing commencing, a settlement was negotiated. The application for a protection order was to be withdrawn, on the basis that Ms RA provided an undertaking. Ms LO left the court and returned to her office to type up the undertaking. The undertaking which was filed with the court, was not signed by Mr A, and included an amendment which had been hand written.

[9] Ms RA lodged a complaint with the New Zealand Law Society Lawyer’s Complaints Service (the Complaints Service) on 25 March 2018. The substance of her complaint was that:

(a) Ms LO had failed to discuss with her, or explain the implications of, the undertaking she was asked to sign.

(d) She had signed an undertaking which made concession to her having done certain things which she had in fact not done.

[11] That correspondence provides full response to the issues raised by Ms RA’s complaint, and commences with indication that Ms LO is responding to a complaint received on 29 March 2018.

[12] In correspondence forwarded to “[Area] Complaints” on 22 June 2018, Ms LO confirms that she is providing the Complaints Service with a copy of her correspondence forwarded to the Legal Services Agency, and provides further explanation as to the process surrounding the filing of the undertaking with the Court. She notes that:

(c) Opposing counsel would confirm (if required) that the handwritten amendment had been made to the document, prior to the document being signed.

[13] Ms LO forwarded correspondence to the Complaints Service on 16 July 2018. [14] In her correspondence to the Legal Services Agency, Ms LO submitted that:

(a) She had met with Ms RA on a number of occasions prior to the court fixture that had been set down for hearing on 15 March 2018.

(b) There was little risk in Ms RA signing an undertaking, where she had faced possibility of a final protection order being made if the matter had proceeded to a hearing.

(c) Ms RA and her support person appeared to be receptive to the suggestion that the matter be settled by way of filing of an undertaking.

(e) She had left the court and returned to her office to draft the undertaking, and discussions continued on her return to court.

(f) There was an understanding reached that the undertaking would preserve confidentiality, except to the extent that it was required to be disclosed to “those who needed to know”.

(g) It was carefully explained to Ms RA that her signing the undertaking did not carry with it any acquiescence to acceptance of the allegations made in the protection order application.

(h) She had inserted a handwritten amendment to the undertaking, following discussions with Ms RA.

(i) It was her view that Ms RA fully understood the undertaking that was being signed.

(a) Indicated that the possibility of settling the matter by way of undertakings had been discussed with Ms RA, prior to attending court.

proceedings by way of the providing of an undertaking. (c) The undertaking provided contained no admission

(b) Treat Ms RA and/or her son with respect and courtesy; (c) Act solely for the benefit of Ms RA; and

[18] The Committee 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.

(b) Complaint that Ms LO had behaved discourteously was not made out on the material available.

(d) There was no evidence to give indication that Ms LO had failed to take adequate steps to reasonably explain the undertaking to Ms RA, or to clarify the implications the signing of the undertaking would have for the protection order hearing.

[20] Ms RA filed an application for review on 17 January 2019. [21] By way of outcome, Ms RA makes request that:

(a) Ms LO be held accountable for her actions. (b) The undertaking provided be cancelled.

(b) she has been cleared of harassment on grounds that there was insufficient evidence to support the claim; and

(d) she had not been provided opportunity to read the undertaking before being pressured to sign; and

[23] Ms RA attached to her review application, correspondence from her mother, Mrs L RA. In that correspondence, Mrs RA:

(d) Said that additional terms were added to the undertaking, after her daughter had signed the document and without her daughter’s knowledge.

[24] Ms LO was invited to comment on Ms RA’s review application but elected not

[25] The parties have agreed to the review being dealt with on the papers. This review has been undertaken on the papers 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 information available if the LCRO considers that the review can be adequately determined in the absence of the parties.

[26] The parties were advised that the Review Officer was intending to deal with the matter on the papers and given opportunity to raise objection to that proposed course, if they wish to do so. No objections were received.

[27] I record that having carefully read the complaint, the response to the complaint, the Committee’s decision and the submissions filed in support of and in opposition to the application for review, there are no additional issues or questions in my mind that necessitate any further submission from either party. On the basis of the information available I have concluded that the review can be adequately determined in the absence of the parties.

[28] 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.

[29] 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 coming to his or her own view of the fairness of the substance and process of a Committee’s determination.

[30] 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:

[31] By way of remedy, Ms RA requests that Ms LO be held accountable for her actions, and the undertaking filed with the court to be “thrown out”.

[32] A Review Officer has no jurisdiction to interfere with undertakings that have been endorsed by the court. The focus for this review, is on the concerns that Ms RA has regarding the representation provided by Ms LO.

[33] At the nub of Ms RA’s complaint, is concern that she executed an undertaking which, in her view, made concession to her having behaved inappropriately by engaging in threatening behaviours when such allegations were both untrue, and inconsistent with her history of having been over many years, a decent and law-abiding citizen. Ms RA complains that she signed the undertaking under duress.

[34] Having executed the undertaking, Ms RA says that the undertaking was used against her.

[35] Ms RA’s complaints arise in the context of there clearly having been a significant degree of family turmoil following her separation from Mr A, turmoil which appears to have continued to a degree after the undertaking was provided.

[36] Whilst Ms RA refers to events that transpired after the court appearance, this review must necessarily focus on the events that occurred during the time that Ms LO was instructed to represent Ms RA, and in particular the circumstances surrounding the execution of the undertaking.

[37] The Committee has carefully identified the conduct rules of relevance to the issues of complaint raised.

[38] Turning firstly to complaint that Ms LO failed to treat Ms RA (and her son) respectfully, it is fundamental that a lawyer should treat their clients with courtesy and respect. Whilst there are specific conduct rules that reinforce the need for a lawyer to ensure that their interactions with their client and others are managed with dignity,3 a lawyer should not have need to resort to professional conduct rules for guidance. It has been noted, that “you would have thought it axiomatic that a lawyer, no different from all human beings, should be courteous in his or her dealings with other people as a matter of course”.4

[39] Complaint that Ms LO behaved discourteously to Ms RA, is linked in part to accusation that Ms LO pressured Ms RA to sign the undertaking. I will return to that issue later in the decision.

[40] General aspects of Ms LO’s alleged behaviour which, viewed reasonably, would fall into the category of discourteous conduct captured by rule 3.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules),5 were the accusations that Ms LO had spoken sharply to Ms RA and her son and that she was impatient with them.

[41] Ms RA’s son had advised the Complaints Service that he was proposing to file a separate complaint on behalf of his mother. However, following discussions with the Complaints Service it was agreed that his complaint could be comfortably assimilated into the complaint filed by Ms RA.

3 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rr 3.1 and

4 Richard Scragg The Ethical Lawyer: Legal Ethics and Professional Responsibility (Thompson

5 A lawyer must at all times treat a client with respect and courtesy and must not act in a discriminatory manner in contravention of section 21 of the Human Rights Act 1993.

[43] It is a serious matter for a lawyer to have an adverse conduct finding made against them by a disciplinary body.

[44] The party seeking to establish a conduct complaint against a lawyer carries the burden of providing evidence of sufficient strength to support the complaint made. An applicant on review must satisfy the Review Officer that the evidence they have provided, more probably than not, supports the argument they are advancing.

[45] The difficulty here, and it is one which was identified by the Committee, is that allegations that Ms LO spoke sharply to Ms RA and her son or was discourteous in her manner, are difficult to establish to the required threshold of proof when the evidence consists entirely of the competing and differing accounts of the parties or close associates of the parties.

[46] Indication that Ms RA’s son had intended to support his mother by filing a separate complaint, would suggest that he would support his mother’s recollection of events, though I note Ms RA’s complaint was not supported by any submissions from her son.

[47] If a statement had been received from Ms RA’s son, the weight that could have been accorded to the statement would necessarily have had to have taken into account the closeness of the relationship. I hasten to emphasise that this is not to suggest that if a statement had been provided, that little weight could be given to it — but rather to emphasise that evidence which endeavours to provide an account of conversations that have taken place between parties, is of most value when the individual providing the evidence is entirely independent of those parties, and is seen to have no vested interest in providing an account which reflects anything other than an unvarnished view of the individual’s best recollection of events.

[48] I would also note that Ms RA does not suggest that Ms LO was repeatedly discourteous to her or her son. The one specific incident she identifies (allegation that Ms LO told her son to “shut up”) is not sustained or supported by other examples, other than general allegation that she was pressured by Ms LO.

[49] If it was the case that Ms LO had spoken to Ms RA’s son in the manner complained of, that would be regrettable, but conduct rules need to be applied with a degree of rigour and robustness, and with a sufficient appreciation of context. A single incident such as that described, would not provide proper basis for the making of an adverse conduct finding.

[50] There is insufficient evidence to support complaint that Ms LO was discourteous.

[53] Succinctly summarised, Ms RA’s complaint is that she was pressured into signing the undertaking, she did not understand it, and the undertaking did not serve her interests. These complaints, if established, would support conclusion that Ms LO had breached the conduct rules identified below.

[55] Rule 3 provides that a lawyer must always act competently, and in a timely manner consistent with the terms of the retainer and the duty to take reasonable care.

[56] Rule 7.1 provides that a lawyer must take reasonable steps to ensure that a client understands the nature of the retainer and must keep the client informed about progress on the retainer.

[57] Rule 13.3 directs that subject to the lawyer’s overriding duty to the court, a lawyer must obtain and follow a client’s instructions on significant decisions in respect of the conduct of litigation. Those instructions should be taken after the client is informed by the lawyer of the nature of the decisions to be made and the consequences of them.

[58] In circumstances such as was the case here, where a court hearing is about to proceed and suggestion is made prior to hearing that a settlement between the parties be considered, the negotiations that take place between the parties and their respective lawyers can at times lead the lawyer’s clients to become concerned that they are being put under pressure. On occasions, parties who have concluded settlements in such circumstances have later, when they have had greater opportunity to reflect on the matter, regretted that a settlement had been agreed to.

[59] It is nevertheless a feature of litigation that cases are often settled at the court door. The imminent prospect of court proceedings can bring parties and their lawyers to undertake a more focused analysis of the potential benefits of settling without need for a hearing.

[60] What is critical for a lawyer in these situations is to ensure that their client’s interests are protected at all times, and that the pressure that is frequently the companion to last-minute negotiations does not overwhelm their client, and impede their client’s ability to fully understand the nature of the settlement under discussion, the specific terms of the settlement, and importantly, the consequences for the client of settling on the basis proposed.

[61] Possibility that a client may be compromised is best met by the lawyer taking careful steps to ensure that the terms of the settlement (in this case an undertaking) are clearly understood.

[62] That process will inevitably involve the lawyer sitting down with their client and making clear that the dictates of complying with the court timetable comes second to the need to ensure that the client fully understands what is happening. Given indication that a settlement is possible, courts will generally be very receptive to allowing time to the parties to traverse settlement options. Of course, this flexibility is constrained to a degree by the fact that judges presiding over busy courts are not able to postpone the commencement of a hearing for an indefinite period of time.

[63] In my view it may be prudent when parties reach agreement to discontinue proceedings in circumstances where an agreement has been reached by consent, or on the basis of the providing of an undertaking, for the lawyer to make a file note (signed by their client) recording that:

(b) The client has given indication that they fully understood the settlement. (c) The client has confirmed that they wish to settle the matter rather than

[64] That process sharply focuses the client’s attention on the issue as to whether they have willingly agreed to and understood the terms of the settlement. It is a process that provides a degree of protection for the lawyer against subsequent allegation by their client that the process was not understood.

[65] Parties who settle at the court door may not be completely happy with all the terms of the settlement. Compromise is commonplace with settlements.

[66] I turn now to whether Ms LO failed in her duty to ensure that Ms RA understood the consequences of providing the undertaking, or put inappropriate pressure on Ms RA to settle.

[67] In considering this element of Ms RA’s complaint, I am confronted with the dilemma earlier discussed, in that I am presented with two diametrically opposing recollections of events with little other evidence to assist in forming a view as to which of those recollections, on the balance of probabilities, provides the most accurate account of what took place.

[68] I have considered the statements provided by Ms RA and the information in the complaint filed by Ms RA. Both considered that Ms LO had asserted unacceptable pressure on Ms RA to sign the undertaking.

[69] Ms LO records that she had met with Ms RA “several times prior to the fixture”. She also observes that the possibility of settling matters on the basis of undertakings was first discussed with Ms RA following receipt of correspondence from Mr A’s then counsel on 2 October 2017. The issue she says was raised some months before the fixture was to proceed.

[70] I accept Ms LO’s evidence that she had discussed the possibility of settling on the basis of providing undertakings prior to the court hearing. I do so, because it is evidence of advice that a lawyer would commonly give to their client when considering how an application for a protection order should be responded to.

[71] Ms LO’s explanation as to why no steps were initially taken to attempt settlement also presents as credible. She was dealing with two applications, one of which she recognised could not succeed because of jurisdictional obstacles. She would likely have thought it imprudent to discuss possible options for settlement of Mr A’s proceedings, whilst the other application remained on foot.

[72] I appreciate that Ms RA and her family members felt that Ms RA was being put under pressure, but an examination of the sequence of events that occurred at the court, would give indication that some time was spent negotiating and finalising the terms of the undertaking.

[73] Ms LO met with Ms RA at the court at 11 am on the morning the fixture was to proceed.

[74] Ms LO describes a process not unusual in these circumstances, of her moving back and forth between her client and Mr A’s lawyer, whilst the agreement was being thrashed out.

[75] Having reached agreement as to the form of the undertaking some time later, Ms LO as has been noted, returned to her office to type up the undertaking. It was

agreed that Ms RA would remain at the court whilst Ms LO attended to finalising the undertaking, but Ms RA had some matters she wished to address with Ms LO and left the court to go to Ms LO’s office. She was accompanied by her son. This provided further opportunity for discussion.

[76] Ms LO says that when Ms RA attended at her office, Ms RA raised concern about whether the undertaking provided would remain confidential, and sought assurances that in providing the undertakings, she was not making admissions to having engaged in the conduct as alleged by Mr A. Ms LO’s account of what transpired at her office is not contradicted by Ms RA. Discussion on such specific matters relating to the undertaking, would tend to support conclusion that Ms RA understood what an undertaking was, and what the consequences would be for her of providing an undertaking.

[77] On returning to the court, discussions continued. Mr A’s counsel advised that

[79] I am not persuaded that Ms RA had not been given sufficient opportunity to consider the consequences of settling the proceedings by way of her providing an undertaking.

[80] Having considered the steps that were taken at court and what had occurred prior to the court hearing, I do not accept that Ms RA would have been entirely oblivious to the consequences of the process or the implications of the undertaking. I consider it probable that she fully understood that her agreement to the providing of undertakings would avoid risk of a final order being made. I think it also likely, that Ms RA herself appreciated that there was a measure of vulnerability in her position.

[81] It is difficult as I have noted, to attempt to reconstruct from the differing accounts of the parties exactly what was said in the course of the negotiations that took place at the court. It approaches the entirely speculative to attempt to construct a view as to what Ms RA’s understanding of the advice she was receiving was, but I consider it relevant that there were discussions with Ms RA some months prior to the court hearing, in which possibility was raised of Ms RA providing undertakings. I do not think it likely that Ms RA was ambushed at the court by the prospect of the matter being resolved by a process she had no prior knowledge or understanding of.

[82] Ms RA complains that the amendment added at last minute, was not discussed with her.

[83] In correspondence forwarded to the Complaints Service after she had lodged her complaint, Ms RA advised as follows:

I would like it noted that the handwriting on the bottom of the undertaking, is not mine and was not there when I signed the document, both my mother and son ([aged]) also will verify this.

[84] This is to suggest that an amendment was made to the document without her consent.

[85] It is a serious accusation to make of a lawyer that they may have added a clause to a document to be filed with the court, without their client’s knowledge.

[86] It is self-evident that if a lawyer was to add a clause to an undertaking to be presented to the court, without discussing the provision with their client, the lawyer would have failed to provide their client with competent representation or to have acted on their client’s instructions.

[87] In providing response to suggestion that an addition had been made to the undertaking, after it had been signed by Ms RA, Ms LO explained that:

(a) She had discussed the amendment with Ms RA. (b) Ms RA had read the undertaking.

(e) The undertakings had been drafted on yellow paper and the court registrar would not accept the undertaking in that form.

(g) Opposing counsel would confirm, if required, that the amendment had been added to the document, before it was signed by Ms RA.

[88] The copy of the undertaking provided to the Review Office, presents as consistent with Ms LO’s explanation as to its execution.

[89] I do not conclude, having given the matter careful consideration, that Ms RA was unaware that an amendment had been made to the document. The account Ms LO provides of the process that was taken presents as plausible. I think it also relevant that Ms LO has sufficient confidence in her recollection of events, to be able to state that opposing counsel would support her recollection.

[90] Ms RA complains that the undertakings provided did not protect her interests.

[91] She says that undertaking failed to provide sufficient assurance of confidentiality and allowed a platform for Mr A to disseminate the undertaking and use it against her.

[92] She argues that the undertaking should have been more carefully drafted to ensure that it would not be interpreted as an admission on her part of accepting responsibility for the behaviours that Mr A had accused her of.

[93] The undertaking is framed in terms that she “will not” do a number of things.

[94] In summary, she provides assurance that she will not threaten or physically harm Mr A, that she will not damage or threaten to damage Mr A’s property, and that she will ensure that she has no contact with Mr A.

[95] Ms RA believes that the undertaking provided amounts to an admission on her part that she had presented as a threat to Mr A. She says that she has been advised that the undertaking should have included a denial of liability.

[96] Ms LO says that she explained to Ms RA that providing an undertaking in the form as drafted, did not amount to an admission on Ms RA’s part that she had engaged in any of the behaviours that the undertaking sought to prohibit.

[97] The Committee concluded that it appeared from Ms RA’s complaint, that she

[98] I have a measure of sympathy for Ms RA when she argues that she is concerned that the undertaking constitutes an admission.

[99] It is not. However, an undertaking which catalogues a litany of unacceptable behaviours (some of these behaviours of a nature which would merit description of them as potentially constituting criminal offences) with purpose to provide assurance that an individual will refrain from engaging in those behaviours, may encourage the individual providing the undertaking to the view that admissions are being made.

[100] That is to a degree inevitable. Undertakings given in protection order proceedings which provide assurances that a party will not act in a particular way, inevitably proceed from the starting point that the applicant bringing the application considers themselves to be in need of protection.

[101] It may be that adding an introduction to the undertaking which acknowledged that Ms RA provided the undertaking with no admission of responsibility for the conduct alleged in Mr A’s application, may have made Ms RA feel more comfortable with the undertaking.

[102] But it is also important to note that it was Ms LO’s view that Ms RA faced a litigation risk of having a final protection order made against her if the hearing proceeded.

[103] Ms LO was entitled, and indeed obliged, to make that assessment. Any potentially adverse consequences of her client making concession had to be measured against the possibility of a final protection order being made which would have remained on the court record.

[104] If the protection order application was so devoid of merit, or entirely lacking in any evidential foundation which could possibly have laid the grounds for an order to be made, defending the application would have presented as the obvious course.

[105] Ms LO was in a position, as lawyers frequently are, of having to make an assessment of litigation risk.

[106] The material that Ms RA has filed on review, together with the supplementary information provided to the Committee, indicates that the last-minute amendment which had been added to the undertaking has caused difficulties for Ms RA, specifically in that she contends that Mr A had relied on the undertaking that she would not have any direct or indirect contact with him, to restrict her freedom of movement, and to provide basis for accusation that she had been harassing Mr A.

[107] The amendment in itself presents as conventional and typical of undertakings that are provided in proceedings of this nature.

[108] It is regrettable if Mr A has placed improper reliance on the undertaking provided with purpose to cause difficulties for Ms RA, but those are matters which clearly Ms RA has been able to address. She provides evidence to confirm that a criminal harassment notice served on her after the proceedings had been settled and had been removed from police records.

[109] But the concerns that Ms RA understandably has do not arise as a consequence of Ms LO failing to ensure that the undertakings provided protected Ms RA’s interests, but seemingly (and I have no other account of what transpired after the court hearing other than that provided by Ms RA) as a consequence of the undertaking being exercised improperly.

[110] I do not conclude that Ms LO promoted the undertaking in order to serve her own interests. The undertaking provided Ms RA with protection against possibility of an adverse order being made, an outcome which Ms LO had concluded in her professional view, was a possibility.

[112] 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.

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

RA v LO [2019] NZLCRO 116 (23 September 2019)