WN v ZD [2019] NZLCRO 121 (31 October 2019)

Last Updated: 2 December 2019

LCRO 215/2018

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 WN

_Applicant

AND ZD

_Respondent

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

_DECISION

Introduction

[1] Mr WN has applied for a review of a decision by the [Area] Standards Committee [X] to take no further action in respect of his complaint concerning the conduct of the respondent, Ms ZD.

Background

[2] Mr and Mrs WN’s home was damaged in the Christchurch earthquake.

[3] They engaged ABC Limited (ABC) to carry out repairs on the home.

[4] Mr and Mrs WN were not happy with the quality of ABC’s workmanship.

[5] They were not prepared to pay for work completed as they considered it to be substandard.

[6] ABC filed summary judgment proceedings in the District Court.

[7] Ms ZD was instructed to defend the summary judgment application. Ms ZD

was a solicitor employed by the law firm [law firm].

[8] A defended hearing was scheduled to proceed on 14 March 2017. Mr WN

had advised that he and his wife would not be attending the hearing.

[9] Ms ZD became unwell on the evening of 13 March 2017. She made request of the Court to reschedule the hearing. The matter was allocated a hearing date for

22 June 2017.

[10] Ms ZD left the employ of [law firm] on 2 June 2017. On her departure, Mr WN’s file was transferred to Mr FV.

[11] The summary judgment hearing proceeded on 22 June 2017.

The complaint and the Standards Committee decision

[12] Mr WN lodged a complaint with the New Zealand Law Society Complaints Service (the Complaints Service) on 12 February 2018. The substance of his complaint was that:

(a) Ms ZD had failed to inform him that she was unable to appear at court on 14 March 2017.

(b) Ms ZD had failed to provide him with a copy of the written submissions that had been prepared for hearing, prior to the hearing proceeding.

(c) Ms ZD had advised that she would make contact with the plaintiff’s counsel to clarify the sum being claimed by the plaintiff, but had failed to do so.

(d) Neither Ms ZD, nor the lawyer who had taken responsibility for the file following Ms ZD’s departure, had advised him of Ms ZD’s departure from the firm.

(e) Mr FV had insufficient time to prepare for hearing. [13] In responding to the complaint filed, Ms ZD submitted that:

(a) she was unable to attend the court hearing as she was unwell; and

(b) it was appropriate to make request of the court to reschedule a hearing date; and

(c) Mr and Mrs WN had advised that they would be not be attending the hearing; and

(d) she had contacted Ms EP to advise that she had been unable to attend the hearing; and

(e) she had received no indication of concern from her clients after having notified them that she was unable to attend the hearing; and

(f) she had contacted the plaintiff’s counsel to clarify the amount being claimed by the plaintiff, particularly a failure of the plaintiff’s proceedings to disclose that her clients had paid a deposit which did not appear to have been acknowledged and had left a message for counsel to contact her; and

(g) in any event, information relating to the deposit was fully disclosed in Mr WN’s affidavit and in the plaintiff’s reply affidavit where it was conceded by the plaintiff that the deposit had been paid; and

(h) her recollection was that she had advised Mr WN in a telephone discussion that she would be departing her firm; and

(i) her assistant at [law firm] had similar recollection that Mr WN had been advised that she was leaving the firm.

[14] In support of her submissions, Ms ZD attached correspondence from Mr FV. Mr FV said that he had familiarised himself with the file prior to meeting with Mr WN and Ms EP. He considered that he was adequately prepared to conduct the hearing, particularly given that submissions had already been prepared and filed.

[15] The Standards Committee identified the issues to be considered as whether

Ms ZD had:

(a) failed to inform Mr WN of the change of hearing date in a timely manner;

and

(b) failed to provide Mr WN with submissions in a timely manner; and

(c) failed to follow up with ABC’s lawyer in a timely manner; and (d) failed to advise Mr WN that she was leaving [law firm]; and (e) rendered a bill of costs that was not fair and reasonable.

[16] The Standards Committee delivered its decision on 3 October 2018.

[17] 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.

[18] In reaching that decision the Committee concluded that:

(a) There had been no delay on Ms ZD’s part in providing copies of submissions filed to Mr WN.

(b) It was satisfied that appropriate steps had been taken to contact opposing counsel to clarify an issue relating to quantification of the plaintiff’s claim.

(c) Mr FV was able to meet with Mr WN and his wife two weeks after Ms ZD had left the firm, and before the hearing was to proceed. This was sufficient time to allay any concerns there may have been as to whether Ms ZD had advised her clients that she was leaving the firm.

(d) Fees charged were fair and reasonable.

Application for review

[19] Mr WN filed an application for review on 21 November 2018. The outcome sought is that there be a recognition that he and his wife have been victimised twice, first by a builder who had failed to competently repair their home, and secondly by various lawyers who failed to help them achieve justice. He expresses the hope that if there is finally some recognition that he and his wife have been unfairly treated, adequate compensation would follow.

[20] Mr WN’s submissions on review reiterate in large part the concerns raised by him when first advancing his complaint.

[21] He submits that:

(a) He was not advised until approximately a week after the first hearing had been adjourned that the matter had not gone ahead.

(b) Ms ZD had failed to resolve the issue of clarifying the plaintiff’s claim

with opposing counsel.

(c) Mr FV had advised him that he did not have experience in the area of construction law.

(d) If he had known Ms ZD would not be available to proceed his case through to conclusion, he would not have instructed her.

[22] Ms ZD provided brief response to the review application, noting that she had filed a substantive response to the complaint when filed. She notes that the information provided on review reiterates information that had previously been provided, and observes that she is unable to comment on matters which occurred subsequent to her departure from the firm. Further, she emphasises that the Standards Committee when enquiring into the complaint, had considered the written submissions filed by the parties and had reviewed the entire file. It was her view that the Standards Committee accordingly had all relevant information before it when considering the complaint.

Hearing

[23] An applicant only hearing proceeded on 3 October 2019.

[24] Mr WN was accompanied by his wife whom I will refer to for convenience, as

Mrs WN.1

[25] While the complaint and review applications were advanced in Mr WN’s name, it was obvious that the matters were in essence being advanced both by Mr and Mrs WN.

[26] I considered it necessary to adopt a flexible and pragmatic approach, and to allow Mrs WN opportunity to speak to the application where appropriate.

[27] Following the hearing, I concluded that it would be appropriate to provide opportunity to Ms ZD to respond to matters traversed by Mr WN in the course of the hearing, in particular the question as to whether Ms ZD had met her obligation in general terms to keep her clients informed during the course of the retainer, and more specifically, whether she had taken adequate steps to ensure that her clients were fully informed regarding the circumstances of her departure from [law firm].

[28] A telephone conference, attended by both parties, proceeded on Thursday,

_{10 October 2019.}

1 This was one of three review applications filed by Mr WN, all of which were dealt with on the same day. Throughout those applications, and in the documentation accompanying applications, Mr WN’s wife was variously referred to as Mrs WN or Ms EP.

Nature and scope of review

[29] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:2

... 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.

[30] More recently, the High Court has described a review by this Office in the following way:3

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.

[31] 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

[32] The following issues will be addressed on review:

_{(a) Did Ms ZD fail to inform Mr WN that she would be leaving [law firm]?}

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

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

(b) Did Ms ZD fail to inform Mr WN of the change of hearing date in a timely manner?

(c) Did Ms ZD fail to follow-up a query with the plaintiff’s lawyer? (d) Were the fees charged fair and reasonable?

Did Ms ZD fail to inform Mr WN that she would be leaving [law firm]?

[33] Mr WN suggested that it had come to his knowledge that Ms ZD was aware that she would be leaving [law firm] when she first took instructions from him.

[34] No evidence was advanced to substantiate this allegation, and I could find no reference to it having been made prior to the review hearing.

[35] I see no evidence to support suggestion that Ms ZD knew that she would be leaving the employ of [law firm] at the time she took instructions from Mr WN.

[36] Mr WN argued that a lawyer had an obligation, once they had taken instructions, to finish the job.

[37] I appreciate that it can be disconcerting and unsettling for clients when the lawyer they have been dealing with can no longer continue to represent them, but inevitably there will be occasions when a lawyer will leave their place of employment. A decision made by a lawyer to move on cannot properly constitute conduct that is needing or deserving of a disciplinary response. It would place an unacceptable and indeed unrealistic burden on lawyers, if their freedom to ply their trade was constrained by an obligation to bring the work on all their files to fruition before they could leave a firm to take up another position. Some matters, particularly litigation files, may take months, if not years to reach conclusion.

[38] There may be a number of reasons as to why a lawyer is unable to complete a retainer. When that is the case, the obligation on the lawyer is to safeguard their client’s interests by ensuring that the file is properly prepared for handover, that assistance is provided to the client to secure alternative representation, and that the client is kept fully informed.

[39] I note that the letter of engagement records that Mr WN’s contract of retainer was with the firm [law firm].

[40] Ms ZD was recorded in the letter of engagement as the lawyer “responsible for the matter”, with Mr OC as the litigation partner “responsible”.

[41] I take it that it was Ms ZD’s task to manage the day-to-day file, with possibility that Mr KH may become involved if required.

[42] Whilst Ms ZD was unable to exactly recall the date that she gave notice to [law firm] (and I make no criticism of her for that, as it is understandably difficult for her to recall exact dates some years after the event), she indicated that her contract of employment would have required her to provide her employer with two, possibly three weeks notice.

[43] Ms ZD finished up with [law firm] on 2 June 2017.

[44] If two weeks’ notice had been provided it would be apparent that she would have been aware mid-May 2017 that she would be leaving.

[45] Ms ZD says that she would have informed Mr WN when speaking with him on

30 May 2017 that she would be leaving [law firm].

[46] Mr WN accepts the possibility that he spoke to Ms ZD on 30 May 2017 but is adamant that neither he nor Mrs WN were informed by Ms ZD of her impending departure.

[47] Mr and Mrs WN say that they first became aware Ms ZD had left [law firm] on

19 June 2017 when Mr WN phoned the firm to speak to Ms ZD.

[48] Mr and Mrs WN say that they were then referred to Mr FV, a lawyer with

whom they’d had no previous contact.

[49] This review is not focused on the conduct of Mr FV, but from the time of Ms ZD’s departure from the firm, responsibility for the management of the WNs’ file rested with the directors of [law firm].

[50] An examination of the [law firm] time records indicate that there is no record of the firm having any contact with Mr and Mrs WN from the time Ms ZD departed on

2 June 2017, to the time contact was made by Mr WN on 19 June 2017. The last time entry recorded for attendances by Ms ZD, is a record of email correspondence being forwarded to her by Mr and Mrs WN on 17 May 2017.

[51] It would appear that Mr and Mrs WN are correct in the recollection that it was they who had initiated contact with the firm, as the time records recall the only telephone contact between the WNs and [law firm] during the relevant period of time, being a telephone call made by the WNs on 19 June 2017.

[52] When meeting with Mr FV on 19 June 2017, they say that they expressed concern to Mr FV that they had not been advised that Ms ZD would not be managing their case. They say that they were agitated and upset when meeting with Mr FV and that it would have been readily apparent to him that they were distressed that they had not been advised that he was taking over their case.

[53] When Mr and Mrs WN met with Mr FV on 19 June 2017, the case was set to proceed in the court on 22 June 2017. The hearing was imminent.

[54] Whilst I have emphasised that the focus of this review is not on the conduct of the lawyers who took over from Ms ZD, I accept Mr and Mrs WN’s evidence that the first contact they had with Mr FV was on 19 June 2017.

[55] I find that to be the case, as there was no correspondence on the file either from Ms ZD, or from any other lawyer, to evidence that Mr and Mrs WN had been advised that the matter had been placed in new hands.

[56] It is apparent from the time records that preparing for the hearing that was to proceed on 22 June 2017 assumed a degree of urgency when Mr FV commenced his active involvement with the file on 19 June 2017.

[57] The Committee concluded that the inquiry into the complaint that Ms ZD had failed to advise Mr WN that she was leaving, and disagreement between the WNs and Ms ZD as to whether the WNs had been informed of her plans, was “overridden by the fact that Mr and Mrs WN were able to meet with Mr FV on 19 June 2017, a period of two weeks following Ms ZD’s departure from [law firm], and prior to the hearing date”.4

[58] With respect to the Committee, it is my view that the Committee has misdirected itself when determining that Mr FV’s capacity to prepare for the hearing was an adequate or relevant response to Mr and Mrs WN’s concern that they had not been told that Ms ZD was no longer able to represent them.

[59] In responding to the complaint, Ms ZD provided a copy of correspondence from Mr FV in which he confirmed that he had discussed the file with Ms ZD during the time she was employed by [law firm]. He noted that he considered he had ample time to prepare for the hearing.

[60] I accept Mr FV’s assurance that he considered he had sufficient time for preparation, however I think it probable that Mr FV’s involvement with the file during the time it was managed by Ms ZD was minimal. Ms ZD was directly questioned as to the

4 Standards Committee decision (3 October 2018) at [25].

extent of the involvement that Mr FV had with the file prior to her departure. She recalled in what I perceived to be somewhat vague terms, that she had discussed the file with Mr FV, but could recall little beyond that.

[61] As noted, the time records give no indication of Mr FV having spent any time on the file during Ms ZD’s stewardship.

[62] Ms ZD submitted that Mr FV was an experienced civil litigator.

[63] The letter of engagement records that Ms ZD’s supervising partner was to be Mr OC. Ms ZD explained that responsibility for her supervision shifted to Mr FV, when she moved offices and commenced occupying an office with Mr FV.

[64] Drawing these threads together, I do not consider the question as to whether Ms ZD fulfilled her obligation to advise Mr WN of her departure, was adequately met by argument that Mr FV was equipped to take over the file. He may well have been, but that did not absolve Ms ZD of responsibility to ensure that her clients were informed that she would be unable to progress her case.

[65] Attention then returns to the telephone discussion that Ms ZD had with Mr WN

on 30 May 2017.

[66] Ms ZD’s evidence of this phone call is a file note, which simply records “T/F

[W]”.5

[67] Ms ZD confirms that the code used in her office for recording telephone calls received, was T/F.

[68] A note on the file records that Mr WN had left a message for Ms ZD on

29 May 2017 to call him.

[69] It is regrettable that Ms ZD’s file note of 30 May 2017 does no more than record receipt of Mr WN’s call. It is difficult to see the point or purpose of recording a telephone call (other than to stand as a record of a call being received) if the file note is silent as to what the purpose or content of the call was.

[70] In providing response to allegation that she had failed to inform Mr and Mrs WN that she would be leaving, Ms ZD places reliance on what she says would have been her customary practice.

5 The references is to Mr WN.

[71] In responding to the initial complaint, Ms ZD says, “I also believe that I told Mr WN that I was leaving [law firm] and that FV (partner) would now be handling his file. I cannot see how I would have spoken with Mr WN at that time and not relayed the fact that I was leaving”.6

[72] Ms ZD goes on to say, that “the overall list of client files that I had prepared prior to my departure (with a high-level comment on what was required to be read in conjunction with the individual file notes) does not indicate that any clients were yet to be contacted about my departure. In recent discussions with my assistant at the time, her recollection is that she believes that I had indicated that all clients were aware of the fact that I was leaving [law firm]”.

[73] Clearly Ms ZD does not have clear recollection of having advised Mr and Mrs WN that she would be leaving. Whilst I accept that it would be expected that she would have prepared a handover document for her partners, she does not identify any specific instances of her clients having been directly contacted by the firm. Apart from her belief that it would have been unusual for her not to have discussed her departure in her telephone discussion with Mr WN on 30 May 2017, she can point to no instance of her personally having taken any steps to ensure that Mr and Mrs WN had been informed that she would not be able to take their matter to trial.

[74] Mr WN is emphatic in his view that Ms ZD did not disclose to him in the telephone call of 30 May 2017 that she was leaving [law firm].

[75] Mr and Mrs WN say that if they had been informed of Ms ZD’s imminent departure they would have had many questions for Ms ZD and would have sought clarification from her as to what impact her departure would have on their case. They say that they would have wanted to know who was taking over from her and would have inquired as to what impact the change of lawyer would have on their costs.

[76] Mr and Mrs WN query as to why they would have phoned the office of [law firm] on 19 June 2017 making request to speak to Ms ZD, if they were aware that she had left.

[77] I have no evidence from Mr FV as to his recollection of Mr and Mrs WN’s demeanour when he first met with them; his correspondence simply records that he had read the file prior to meeting with Mr and Mrs WN and that he considered he had ample time to prepare for the hearing.

6 Ms ZD to Complaints Service (23 March 2018).

[78] Mr and Mrs WN say that when they first met with Mr FV, they were “upset, angry and frustrated”7 that Ms ZD was no longer their lawyer. They say that they were so distressed, that Mr FV had to calm them down.

[79] I am satisfied having carefully considered the material before me, that Mr and Mrs WN were not advised by Ms ZD that she was leaving, and that the first they learnt of her departure was when they contacted [law firm] on 19 June 2017.

[80] I reach that view for the following reasons:

(a) Mr and Mrs WN’s account of events presented as reliable and

consistent.

(b) I think it probable, bearing in mind the importance of the case to them and the extent to which they clearly were anxious to be kept informed about progress, that they would, if they had been informed by Ms ZD on

30 May 2017 that another lawyer was taking over, have made arrangements to meet with Mr FV and not waited until three days before their case was to be heard to contact their new lawyer.

(c) I accept Mr and Mrs WN’s explanation that they were agitated and upset when they met with Mr FV. At the hearing I formed a view that both were endeavouring to provide an accurate account of their recollection of events, and I think it unlikely that either would be confused as to the reason for their agitation and distress when they first met with Mr FV.

(d) Ms ZD accepts that she did not write to Mr and Mrs WN advising of her departure and informing them as to the arrangements that had been put in place for managing their file.

(e) Nor did [law firm] write to advise Mr and Mrs WN of the changed situation. Whilst Ms ZD correctly notes that after 2 July 2017 responsibility for Mr and Mrs WN’s file rested with [law firm], I can identify no file note or information on the file recording changeover instructions or advice to the lawyer who would be taking over the file. I accept however, that such information may have been recorded in a handover document prepared by Ms ZD relating to all her files.

[81] I hasten to emphasise that in accepting Mr WN’s account that Ms ZD had failed to inform him that she was leaving, I do not suggest that Ms ZD has provided an

7 Mr WN, correspondence to Complaints Service (4 April 2018).

inaccurate account of the conversation she had with Mr WN on 30 May 2017. She did not in her response to the Committee suggest that she had definite recollection of informing Mr WN of her plans. She fairly states her position as being that she believed she would have informed Mr WN and could not see how she would not have raised the issue.

[82] The Standards Committee framed its inquiry into a consideration as to whether Ms ZD had breached a duty in failing to advise Mr WN that she was leaving, by reference to rr 3 and 3.1–3.3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules).

[83] Those rules, in general terms, reference a lawyer’s obligations to act competently and courteously, and to respond to inquiries in a timely fashion.

[84] Whilst I agree that those rules have application to the complaints, a lawyer’s

obligation to keep their client informed is also of relevance.

[85] A lawyer has a duty to keep their client informed on matters relating to the retainer.

[86] Rule 7.1 of the Rules 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.

[87] A lawyer’s obligation to ensure that their client is properly informed, is reinforced in the schedule to the Rules which summarises the duties owed by a lawyer to their client as including a duty to provide a client with information about the work to be done, who will do it, and the service to be provided.

[88] The letter of engagement Ms ZD provided to her clients reinforces these obligations when, under the heading “keeping you informed”, it is noted that “we would like to take a team approach with you and any of your other professional advisors. We shall keep you all informed of relevant information as it becomes available and would ask you to do the same”.

[89] It would be obvious that advice that a lawyer can no longer continue to represent their client is information that is critical to a client, and information that should be promptly conveyed to the client.

[90] If, as was the case here, the firm took the view that the retainer was with the firm, and the firm had the personnel to complete the retainer, Mr and Mrs WN needed

to be informed promptly, introduced to the lawyer who it was proposed would take over the file, and given opportunity to decide whether they wished to stay with [law firm].

[91] Mr and Mrs WN instructed [law firm] because Ms ZD had been recommended to them.

[92] This is confirmed by the first correspondence on the file, being record of an internal office email advising Ms ZD that Mr WN had contacted [law firm] and given indication that he wished to make an appointment to meet with Ms ZD.

[93] Having instructed Ms ZD, was it her obligation to inform Mr and Mrs WN that she would be unable to complete the retainer, or did that obligation fall to her employer?

[94] Part of the responsibility for ensuring that Mr and Mrs WN were kept informed rested with [law firm], but a significant degree of responsibility lay with Ms ZD.

[95] There is no suggestion advanced by Ms ZD that it fell to her employer to notify Mr and Mrs Pelosa of her imminent departure, and I can see no reason as to why her employer would not have had expectation that Ms ZD would, as part of her responsibility to ensure files were left in good order, make contact with her clients.

[96] Nor does Ms ZD suggest that she had omitted to take steps to ensure that Mr and Mrs WN were aware of her impending departure as she considered that responsibility for advising her clients rested with [law firm].

[97] Ms ZD had a duty to inform Mr and Mrs WN that she was leaving. [98] It was she who Mr WN had specifically instructed.

[99] On learning at least two weeks prior to her departure (possibly longer) that she would be unable to continue with the file, Ms ZD should have contacted Mr and Mrs WN immediately and, preferably, made arrangements with them to meet with her at her office. This would have provided her with the opportunity to introduce Mr and Mrs WN to Mr FV. It would have ensured that Mr and Mrs WN were able to assess whether they wished to retain the services of [law firm], or alternatively, to seek legal assistance elsewhere. This opportunity was effectively lost to them when they were alerted at late notice to the fact that Ms ZD had left.

[100] Nor do I think it appropriate that conveying this information was left to the last minute. Whilst I have, for the reasons discussed, concluded that Ms ZD did not advise

the WNs of her departure, even if there is room for disagreement as to what was said in the phone conversation of 30 May 2017, what is not contested is that the conversation was prompted by inquiry from Mr WN. Ms ZD appears to have given no priority to ensuring that Mr and Mrs WN were kept informed.

[101] At the time Ms ZD represented Mr and Mrs WN, she was an associate of the firm. She was a senior lawyer. She had the primary responsibility for carriage of the file. It was her duty to promptly inform the clients that she was responsible for, that she would be unable to represent them in a court matter which was rapidly approaching its date of hearing. That information should have been confirmed in correspondence which carefully explained the consequences for her clients, and which provided some reassurance for her clients that appropriate arrangements could be made to ensure minimal disruption to them.

[102] This is not, in my view, to impose an unreasonable burden to inform on the shoulders of a lawyer, but simply to identify the fundamental steps that must be taken when a lawyer, in circumstances such as Ms ZD found herself in, cannot complete a retainer.

[103] Ms ZD’s failure to adequately keep her client informed, constitutes a breach of r 7.1 of the Rules, and merits a finding of unsatisfactory conduct pursuant to s 12(c) of the Act.

Did Ms ZD fail to inform Mr WN of the change of hearing date in a timely manner?

[104] Mr WN complains that Ms ZD failed to promptly inform him of the fact that the hearing had been adjourned.

[105] It was not anticipated that either Mr or Mrs WN would attend the hearing scheduled to proceed on 14 March 2017. Mr WN had advised that he would be in [country] at the time the hearing proceeded. It was expected that Mrs WN would depart for Italy sometime in April. She was present in New Zealand when the hearing was set down to proceed, but I am satisfied that it was understood that she would not be attending the hearing.

[106] It would be understandable that Mr and Mrs WN would be anxious to learn as to how the hearing had gone.

[107] Mr WN forwarded an email to Ms ZD on 15 March 2017 making request of her to email him to advise him what the outcome of the hearing had been.

[108] Mrs WN forwarded an email to Ms ZD on 16 March 2017, attaching a notice of hearing for the complaint that had been lodged by her and her husband with the Building Practitioners Board.

[109] On 17 March 2017, a legal executive from Ms ZD’s office forwarded Ms ZD an email advising that Mr WN had left a message making request for Ms ZD to contact him. In this message, Mr WN indicated that he was wanting to find out what had happened at the hearing.

[110] Ms ZD says that she spoke to Mrs WN after the hearing and advised Mrs WN that the hearing had been adjourned and informed her of the date the matter had been adjourned to.

[111] Ms ZD’s evidence of this exchange is a file note which unfortunately does not accurately record the date of her telephone conversation with Mrs WN. The file note records month and year, but not the date the conversation took place.

[112] Mrs WN accepts that she was called by Ms ZD, but it is her and her husband’s

view that it took Ms ZD an unacceptable length of time to get in touch.

[113] I am unable to precisely identify when Ms ZD spoke with Mrs WN. All that can be concluded from the evidence available is that the conversation likely took place after

19 March 2017, but before the end of March 2017.

[114] It would be expected that a lawyer would make prompt contact with their client to inform them if their client’s case had been adjourned.

[115] It may have been the case that Ms ZD’s illness (which had prevented her from appearing in Court on 14 March 2017) may have kept her away from her office for a few days.

[116] If it was the case that Ms ZD was absent from the office, Mr WN’s inquiries ideally would have been responded to with indication of Ms ZD’s unavailability.

[117] However, I think it probable that Ms ZD did make contact with Mrs WN in the week commencing 20 March 2017.

[118] It would have been expected that Ms ZD would have reported formally to her clients advising of the adjournment and the new date of hearing, and she did so in correspondence of 18 April 2017.

[119] Whilst Ms ZD’s responses could reasonably be considered a little tardy, I am not persuaded that the delays complained of were of sufficient gravity to merit a consideration as to whether a disciplinary response was required.

Did Ms ZD fail to follow-up a query with the plaintiff’s lawyer?

[120] Mr and Mrs WN complained that Ms ZD had advised them that she would clarify aspects relating to the quantum of the plaintiff’s claim but failed to do so in a timely manner.

[121] I am satisfied that Ms ZD did attempt to follow up with the plaintiff’s lawyer to ascertain the precise sum claimed in the summary judgment proceedings. I accept her submission that the affidavits that had been filed in the proceedings provided accurate account to the court of the sum paid by Mr and Mrs WN that had been overlooked by the plaintiff when the proceedings were first filed.

[122] No conduct issues arise from this aspect of the complaint.

Did Ms ZD fail to provide her clients with a copy of her submissions filed with the court in a timely manner?

[123] In her reporting letter of 18 April 2017, Ms ZD enclosed a copy of the submissions she had prepared for the 14 March hearing.

[124] Whilst the submissions could have been provided earlier, I do not consider that the delay in providing those submissions was of such significance as to merit consideration as to whether a disciplinary response was required.

[125] No conduct issues arise from this aspect of the complaint.

Were the fees charged fair and reasonable?

[126] Mr and Mrs WN advised that they had no complaint about the fees charged by [law firm]. They indicated that they were offended that the Committee had interpreted their complaint as including a complaint about fees.

[127] I have read the original complaint.

[128] Mr and Mrs WN are correct when they say that they did not make complaint that the fees charged were unreasonable.

Penalty

[129] Having concluded that Ms ZD’s conduct in failing to inform Mr and Mrs WN that she was leaving constituted unsatisfactory conduct, attention then turns to the question of penalty.

[130] It has been noted that the term “unsatisfactory conduct” covers a range of conduct, from the mere slip or oversight that is less than satisfactory, to conduct on the border of misconduct that is deserving of serious sanction.8

[131] I consider that the conduct breach established falls at the lower end of the spectrum.

[132] I consider that the finding of unsatisfactory conduct, together with a direction that Ms ZD provide Mr and Mrs WN with a letter of apology, adequately addresses the issue of penalty.

[133] I do not consider the conduct merits consideration of the imposition of a more serious response such as censure, reprimand or fine.

Costs

[134] Where a finding of unsatisfactory conduct is made or upheld against a practitioner on review it is usual that a costs order will be imposed. I see no reason to depart from that principle in this case.

[135] Taking into account the Costs Guidelines of this Office, the practitioner is ordered to contribute the sum of $1,200 to the costs of the review, that sum to be paid to the New Zealand Law Society within 30 days of the date of this decision.

[136] The order for costs is made pursuant to section 210(1) of the Lawyers and

Conveyancers Act 2006.

Enforcement of costs order

[137] Pursuant to s 215 of the Lawyers and Conveyancers Act 2006 the order for costs may be enforced in the civil jurisdiction of the District Court.

8 Duncan Webb “Unsatisfactory Conduct” (2008) 717 Lawtalk 18.

Publication

[138] 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

(a) Pursuant to ss 211(1)(a) and 12(c) of the Lawyers and Conveyancers Act 2006, the decision of the Standards Committee to take no action in respect to complaint that Ms ZD had failed to advise Mr WN that she was leaving [law firm] is reversed and substituted with a finding of unsatisfactory conduct.

(b) Pursuant to s 156(1)(c) of the Lawyers and Conveyancers Act 2006, Ms ZD is ordered to provide, within 21 days of the date of this order, an apology to Mr and Mrs WN.

(c) Pursuant to s 210(1) of the Lawyers and Conveyancers Act 2006, Ms ZD is ordered to contribute the sum of $1,200 to the costs of the review, that sum to be paid to the New Zealand Law Society within 30 days of the date of this decision.

(d) In all other respects, the decision of the Standards Committee is confirmed.

_{DATED this 31}ST _{day of October 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:

Mr WN as the Applicant

Ms ZD as the Respondent

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