TA v UD [2019] NZLCRO 124 (31 October 2019)

Last Updated: 16 January 2020

LCRO 224/2018

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 TA

_Applicant

AND UD

_Respondent

_DECISION

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

_changed.

Introduction

[1] Mr TA 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 the conduct of Mr UD, at the relevant time a partner with [Law Firm 1] (the firm).

[2] Mr UD assisted Mr TA to resolve a dispute concerning a residential property

(the property) co-owned by Mr TA with Mr VG.

[3] Before Mr TA and Mr VG purchased the property, they agreed that: (a) Mr VG, who would occupy the property, would pay an occupation rent to Mr TA; and (b) they would “discuss and decide” about repairs and renovations to the house on the property.

[4] Differences arose between them concerning contributions towards certain items in the house.1 Having then discovered that their ownership was not as tenants in

1 Installation of a hot water cylinder, and of the front entrance.

common, but as joint tenants,2 Mr TA made a complaint to the Law Society about the lawyer, Mr SM, who acted for him and Mr VG on the purchase of the property.

[5] In early September 2016, Mr TA retained Mr RC, Mr UD’s partner in the firm at that time, to assist in resolving these differences. Unable to “create a dialogue” with Mr VG, in December 2016 Mr RC advised Mr TA “to proceed with litigation”. He also informed Mr TA he was soon to retire from practice and Mr UD would take over the matter.

[6] Mr UD contacted Mr TA in January 2017. Mr TA was still awaiting the outcome of his complaint about Mr SM to the Law Society.

[7] On 4 April 2017 Mr UD invoiced Mr TA in respect of the firm’s attendances from

5 September 2016 concerning that complaint.

[8] Six months later, on 10 October 2017, Mr UD asked (via email) Mr TA for instructions on what Mr TA wanted to do in “realising” Mr TA’s share of the property. In particular, whether Mr TA wanted to “claim occupation rent” from Mr VG, or “apply to court to have the property sold to realise” Mr TA’s half share.

[9] In subsequent email communications, Mr TA responded on 25 November 2017 with some of the information requested. On 1 December 2017 he informed Mr UD that he had “received funds”, presumably to pay Mr UD’s legal fees. Mr UD made further requests for information on 4 and 7 December 2017 to which Mr TA responded on 5 and

21 December 2017 respectively.

[10] That information included matters discussed by Mr TA and Mr VG about the property before purchase, the purchase price paid and their respective contributions, and the valuation of the property including current market rental.

[11] On 18 January 2018, Mr TA asked Mr UD whether Mr UD had received the rental appraisals, and whether “there [was] anything more” that Mr UD “required”. A month later on 17 February 2018 Mr TA sent a follow-up to Mr UD noting he “ha[dn’]t heard from” Mr UD “in a while”. He enquired whether Mr UD was “still interested in representing” him.

2 DW McMorland and others Hinde McMorland and Sim Land Law in New Zealand (online ed, LexisNexis) at [13.004] and [13.014]: an important feature of a joint tenancy is that “on the death of one joint tenant his or her interest is extinguished and accrues to the surviving joint tenant[s] by virtue of the right of survivorship”. In contrast, “[a] tenancy in common exists whenever two or more persons hold undivided shares in the same parcel of land”.

[12] Two weeks later on 1 March 2018 Mr UD informed Mr TA that “due to pressure of work” he was “unable to accept instructions” on the matter. Mr UD informed Mr TA that Mr TA “would be best to consult a lawyer in [City], nearer to where the problem is”.

Complaint

[13] Mr TA lodged a complaint with the Lawyers Complaints Service (LCS) on

11 September 2018.

[14] The substance of his complaint was Mr UD first, did not respond to his email communications, and secondly, took too long to tell him that due to “other commitments” which took priority, [Mr UD] “was unable to continue acting as [his] lawyer”.

(1) Responding to communications

[15] Mr TA alleged Mr UD did not respond to his email communications for a period of three months before Mr UD told him he could no longer act for him. He said this “lack of communication” cost him “several months in resolving [his] dispute”.

[16] He explained that having received the Law Society’s decision in respect of his complaint about Mr SM, Mr UD’s communications “became less frequent”. He says it was “approximately two months” after that decision before Mr UD took “action ...to change the title of the property” he co-owned.

(2) Termination of retainer

[17] Mr TA claimed that Mr UD took too long before telling him that due to “other commitments” which took priority, [Mr UD] could no longer act for him.

Response

[18] Following an initial assessment by the LCS, Mr TA’s complaint was dealt with

through its Early Resolution Process which I refer to later in this decision.

Standards Committee decision

[19] The Standards Committee delivered its decision on 30 October 2018 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.

[20] The issues identified by the Committee were whether Mr UD first, was entitled to terminate the retainer, and secondly, had delayed informing Mr TA about that.

(1) Termination of retainer – good cause

[21] In the Committee’s view, Mr UD “could not have foreseen” in January 2017 “what his work commitments would be” 14 months later in March 2018.

[22] Having referred to r 4.2(c) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules), the Committee stated that Mr UD’s work commitments in March 2018 constituted good cause for him to terminate the retainer.3

(2) Timing of termination

[23] The Committee stated that Mr UD and Mr TA were in communication with each other during December 2017, so for that reason a year had not elapsed since they were in communication before Mr UD terminated the retainer on 1 March 2018.

[24] The Committee observed that whilst “there was some delay” by Mr UD in terminating the retainer, “not all the delay” could be attributed to Mr UD. This was because he was “awaiting the outcome” of Mr TA’s complaint to the Law Society about Mr SM, and Mr TA had not provided information requested by Mr UD promptly.

Application for review

[25] Mr TA filed an application for review on 3 December 2018. He asks for “focus on the three month delay” he says it took Mr UD to inform him [Mr UD] “was no longer able to represent” Mr TA. Not, as he contends the Committee did, “on aspects that were not related” to his complaint which he says the Committee “misunderstood”.

[26] He says the issue for him is not so much that Mr UD “terminat[ed] [his] services”,

but that Mr UD “fail[ed] to communicate” with Mr TA “in a timely way”.

[27] He says Mr UD’s “communication was becoming less and less frequent”, and it would have “saved [Mr TA] several months” had Mr UD “been direct and upfront” about

_{being unable to continue to act for him.}

3 Rule 4.2(c) permits a lawyer not to complete the regulated services under a retainer if: "the lawyer terminates the retainer for good cause and after giving reasonable notice to the client specifying the grounds for termination".

(1) Termination of retainer – good cause

[28] Mr TA disagrees that Mr UD’s other work commitments in March 2018 excused Mr UD from responding to Mr TA’s earlier emails about the course of action to be taken against the co-owner of the property, Mr VG.

[29] He says having agreed with Mr UD that “a rental demand” would be made

against the co-owner, Mr UD failed to respond to his requests for “updates”.

(2) Timing of termination

[30] Mr TA says he did not consider he had retained Mr UD, and for that reason did not complain about Mr UD’s “timing of the termination of the retainer”.

[31] Whilst he says there was not therefore a “three months delay in termination of the retainer”, he claims Mr UD delayed three months before telling him that Mr UD “no longer wanted to represent” him.

(3) Delay on the matter

[32] He says he regarded Mr UD’s delay in “replying to [his] emails for three months” as “a breach of Mr UD’s obligations” because until March 2018 Mr UD “was still acting as [his] lawyer”.

[33] He says his complaint is that “no action had been taken on [his] case” by Mr UD

“after one year”, not that the retainer “should have been terminated a year [earlier]”.

Response

[34] In response to an invitation from this Office to comment on Mr TA’s review application Mr UD stated that apart from his observation that the delay alleged by Mr TA “does not appear to have resulted in any loss to Mr TA”, he had nothing further to add.

[35] In saying that, he said he presumed that Mr TA remained a part owner of the property, and therefore Mr TA’s “right of compensation” against the co-owner “continues to accrue”.

_{[36] I refer to Mr UD’s subsequent submissions to this Office in my later analysis.}4

4 Mr UD, submissions (12 September 2019 and 11 October 2019).

Review on the papers

[37] The parties have agreed to the review being dealt with on the papers.

[38] 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.

Nature and scope of review

[39] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:5

... 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.

[40] More recently, the High Court has described a review by this Office in the following way:6

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.

[41] 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

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

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

to first, consider all of the available material afresh, including the Committee’s decision,

and secondly, provide an independent opinion based on those materials.

Early Resolution Process

[42] As I mentioned earlier, following receipt by the LCS, Mr TA’s complaint was dealt with through the Early Resolution Process. This involves a Standards Committee conducting an initial assessment of a complaint and forming a preliminary view as to outcome.

[43] If the Committee’s preliminary view is that the complaint lacks substance, a Legal Standards Officer (LSO) will inform the lawyer concerned of the Standards Committee’s preliminary view, inviting response. Any response is noted in a file note and provided to the Standards Committee, which then completes its inquiry into the complaint.

[44] On 26 October 2018 an LSO telephoned Mr UD and informed him that the Committee had reached a preliminary view that it would take no further action on Mr TA’s complaint. Having been asked whether he wished to respond to the complaint, Mr UD indicated that he did not wish to do so.

Issues

[45] I have identified the following issues for consideration on this review:

(a) Was Mr UD retained by Mr TA to advise him concerning his dispute with his co-owner of the property?

(b) Did Mr UD delay in responding to Mr TA’s request for a progress report

on the matter?

(c) Did Mr UD terminate the retainer, and if so for good cause?

[46] Principally because Mr UD elected not to respond to Mr TA’s complaint, I directed the parties to provide submissions concerning why Mr UD did not respond to Mr TA’s enquiry whether Mr UD required any further information.

[47] In particular, I asked Mr UD to specify his reasons why, having already obtained Mr TA’s instructions and provided preliminary advice to Mr TA, he subsequently: (a) appeared not to respond to Mr TA’s requests whether Mr UD required any further information; and (b) then informed Mr TA that he could not continue to act for Mr TA.

Analysis

(1) Retainer

[48] A “retainer” is defined in r 1.2 of the Rules as:

... an agreement under which a lawyer undertakes to provide or does provide legal services to a client, whether that agreement is express or implied, whether recorded in writing or not, and whether payment is to be made by the client or not.

[49] Whilst not defined in the Act or the Rules, the term “client”, as used in rule 1.2, is the recipient of legal services and appears as such in a number of the rules.7 The question whether a lawyer has been retained is to be “determined objectively”.

[50] Mr TA says in his application for review, and communications to this Office, that because he had initially retained Mr RC to act for him on his dispute with Mr VG he had not retained Mr UD on that matter.

[51] However, it is clear that from late January / early February 2017 Mr UD assumed responsibility for Mr TA’s matter from Mr RC. Mr UD acknowledges in his submissions that he acted for Mr TA on that matter, and in respect of Mr TA’s complaint to the Law Society about Mr SM.

(2) Responding to Mr TA’s enquiries

(a) Parties’ positions

[52] Mr TA alleges that Mr UD did not respond to Mr TA’s requests for updates about

how to progress resolution of his dispute with Mr VG.

[53] Whilst Mr UD initially acknowledged that due to the pressure of other work there was “a delay sometime in February [2018]” which he contended was “insignificant in the overall context”, as discussed below, he now “concede[s]” that “by the end of January, Mr TA could reasonably have expected a response to [Mr TA’s] 18 January email”.

(b) Communications between the parties

[54] Between 10 October and 21 December 2017, Mr UD sought Mr TA’s

_{instructions as to Mr TA’s objectives in resolving his differences with Mr VG. Mr UD}

7 The Australian Solicitors’ Conduct Rules (June 2011) similarly provide that “client” “with respect to the solicitor or the solicitor’s law practice means a person (not an instructing solicitor) for whom the solicitor is engaged to provide legal services for a matter.”

requested background information from Mr TA before recommending an approach for Mr TA to take. He asked Mr TA whether Mr TA’s preference was “to claim occupation rent” from Mr VG, or “apply to court to have the property sold to realise [Mr TA’s] half share”.

[55] In his 4 December email, Mr UD repeated his advice of the “alternative” approach of Mr TA “seek[ing] the sale of the property” to obtain the value of his half share in the property. By 21 December 2017, apart from a “third valuation” of the property which Mr TA said he would obtain, in response to Mr UD’s further requests on 4 and 7

December 2017, Mr TA had provided Mr UD with information about his co-ownership of the property with Mr VG.

[56] That information included details of the purchase price paid for the property and Mr TA’s and Mr VG’s contributions, and valuation (current market value, current rent) information. Mr TA had also informed Mr UD that his preference was “to enforce” his “original agreement” with Mr VG to be included in a property sharing agreement whereby the property could be sold on the expiration of 10 years following the purchase date, or sooner if required by either of them in the event of a dispute.

[57] In his 21 December email, mindful of the imminent Christmas/New Year holiday period, Mr TA asked Mr UD to respond in the new year.

[58] Four weeks’ later on 18 January 2018 in a follow-up email, Mr TA asked Mr UD

whether Mr UD required “anything more”. A further four weeks later on 17 February

2018, Mr TA sent another reminder to Mr UD asking whether Mr UD was “still interested in representing” him.

[59] As I have noted, two weeks later, on 1 March 2018, instead of providing the update requested by Mr TA six weeks earlier, Mr UD informed Mr TA he “was unable to accept instructions”. He suggested Mr TA instruct another lawyer in [City].

(c) Discussion

[60] The Rules “place some emphasis on timely action as part of expected client service”.8 In particular, r 3 requires that when a lawyer is providing “regulated services” to a client, 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”.} 9

8 KD v WW LCRO 83/2011 (30 March 2012) at [84] referring also to r 7: “A lawyer must promptly disclose to a client all information”.

9 See s 6 of the Act: “regulated services” is defined as including “legal services” and

“conveyancing services”, which are themselves defined.

[61] Rule 3.2 requires that lawyers “must respond to inquiries from the client in a timely manner”. A similar duty contained in r 7.2 states that lawyers “...must promptly answer requests for information or other inquiries from the client”.

[62] This Office has considered a number of complaints by clients about their respective lawyers not having been timely in responding to requests for advice or updates.

[63] Those decisions in which contraventions of the rules were found include a lawyer who had made little substantive progress with the client’s matter over a lengthy period, and had not promptly answered requests for information or other enquiries from the client.10 Other decisions include circumstances where the clients experienced difficulty in reaching their lawyer. On one such matter, this led the clients to “[form] the view” they were ‘’at the bottom of the pile’’;11 and on another matter, not unlike Mr TA’s complaint, a client’s repeated requests to the client’s lawyer for a response went unanswered.12

[64] Such circumstances can be contrasted with decisions in which no contravention was held such as where a lawyer was “progressing things with an acceptable degree of diligence in the circumstances”.13

[65] As I identified earlier, the issue is whether Mr UD’s failure to respond to Mr TA’s

18 January and 17 February 2018 requests for updates contravened one or more of the rules I have referred to above.

[66] Not having had a response from Mr UD, which he was expecting following the Christmas/New Year holiday period, Mr TA’s 18 January 2018 email provided a reminder to Mr UD. Mr TA says Mr UD “should have advised [him] immediately” in such circumstances. He said because he lives overseas where communication by email is not secure he “was reluctant to engage another lawyer”.

[67] Following his Christmas/New Year break, Mr UD returned to his office on

15 January 2018 during the working week ending 19 January, when he went on leave again until 30 January 2018.

10 RI v Hart LCRO 158/2011 (13 July 2012).

11 KD v WW LCRO 83/2011 (30 March 2012) at [85].

12 JV v QG LCRO 65/2011 (13 September 2012) at [36] and [37].

13 Buckingham v Wycombe LCRO 93/2009 (31 July 2009) at [10].

[68] He says when he returned to his office on 30 January, pressure of other work prevented him from “reach[ing] Mr TA’s work”. Although Mr TA’s 17 February 2018 email provided Mr UD with another reminder, that too went unanswered.

[69] The High Court has stated that whilst the rules are to be “applied as specifically as possible”,14 they “are also to be applied as sensibly and fairly as possible”.15

[70] Adopting this approach, with the Christmas/New Year holiday period having intervened since Mr TA’s 21 December 2017 email, Mr UD might be excused for not responding to Mr TA’s 18 January request before going on leave again the following day. However, in my view, it is reasonable to expect he would have done so, as he now acknowledges, on his return to the office on 30 January, or soon thereafter.

[71] Instead, as I have noted, Mr UD did not respond to either of Mr TA’s 18 January, or his 17 February emails before he terminated the retainer on the 1 March 2018.

[72] I consider that Mr UD failed to respond to Mr TA’s 18 January, and 17 February email enquiries in a timely manner and promptly, and by not doing so contravened rr 3,

3.2 and 7.2 which constitutes unsatisfactory conduct under section 12(c) of the Act.

[73] It remains for me to consider whether Mr UD was justified in ending the retainer on 1 March 2018. In particular, whether Mr UD had “good cause” for doing so.

(3) Termination of retainer by Mr UD

(a) Professional rules

[74] In broad terms, whilst the Rules acknowledge a client’s right to terminate a retainer at any time, the same does not apply to the client’s lawyer.

[75] Under r 4.2, once a lawyer has been retained by a client then, unless any one or more of three exceptions apply, the lawyer “must complete” the legal work in respect of which the client has retained the lawyer.16 The exceptions are:

(a) the client discharges the lawyer from the engagement; or

(b) the lawyer and client agree that the lawyer is no longer to act for the client;

_or

14 Q v Legal Complaints Review Officer [2012] NZHC 3082. [2013] NZAR 69 at [59].

15 Wilson v Legal Complaints Review Officer [2016] NZHC 2288 at [43].

16 Duncan Webb, Kathryn Dalziel and Kerry Cook Ethics, Professional Responsibility and the Lawyer (3rd ed, LexisNexis, Wellington, 2016) at [5.8.1]; GE Dal Pont Lawyers’ Professional Responsibility (6th ed, Thomson Reuters, Sydney, 2017) at [3.195]: by so requiring, the rule expresses the doctrine of entire contract or the whole retainer principle.

(c) the lawyer terminates the retainer for good cause and after giving reasonable notice to the client specifying the grounds for termination.

[76] It will be noted that only the third exception permits termination of a retainer by the lawyer, which must be for “good cause” described “non-exhaustively” in r 4.2.1 to “include” the following five circumstances:17

(a) instructions that require the lawyer to breach any professional obligation:

(b) the inability or failure of the client to pay a fee on the agreed basis or, in the absence of an agreed basis, a reasonable fee at the appropriate time:

(c) the client misleading or deceiving the lawyer in a material respect: (d) the client failing to provide instructions in a sufficiently timely way:

(e) except in litigation matters, the adoption of a course of action by the client which is against the lawyer’s advice, which the lawyer believes is highly imprudent, and may be inconsistent with the lawyer’s fundamental obligations.

[77] Importantly, for the purposes of this review, none of these grounds include, as argued by Mr UD, a lawyer’s unavailability due to other work commitments, although it may have been a ground for declining to act at the outset.18 Equally, none of the matters set out in rule 4.1.1, which includes the personal attributes of the prospective client, and the merits of the matter, constitutes good cause for a lawyer to terminate a retainer.19

[78] If a lawyer terminates a retainer, then pursuant to r 4.2.4 the lawyer must provide reasonable assistance to locate another lawyer to represent the client. In doing so the lawyer must turn his or her mind to the consequences of terminating the retainer and how that may disadvantage the client.20 To that end, “a diligent and competent lawyer would set out in writing the reasons for the termination and clearly inform the client what

_{steps he or she ought to take to secure further professional assistance”.}21

17 T v G LCRO 29/2009 (April 2009) at [29].

18 Webb at [5.8.2]; Dal Pont at [3.205]. Note, however, r 4 which requires that "[a] lawyer ... must be available to the public and must not without good cause, refuse to accept instructions... within the reserved areas of work that are within the lawyer's fields of practice". Section 6 of the Act specifies the “reserved areas of work" includes (a) giving legal advice in the context of proposed or actual New Zealand court or tribunal proceedings, (b) appearing as an advocate before a court or tribunal, and (c) representing a person before any court or tribunal. Contrast r 4.1 which includes "a lack of available time" as “good cause for a lawyer to refuse to accept instructions”.

19 Rule 4.2.2: T v G at [30] – only perhaps in a litigation context may there be “an exception” where “other commitments make the completion of the work a logistical impossibility”, such as “where hearing dates conflict”.

20 Webb at [5.8.3] – “Minimising prejudice to the client”,

21 Sandy v Kahn LCRO 181/2009 (December 2009) at [35].

[79] This could take the form of providing the client with the name(s) of a lawyer(s) known to the lawyer who, in the lawyer’s reasonable opinion, had the necessary knowledge and skill in the area of law relating to the client’s matter.

(b) Discussion

[80] As I have noted, from late January 2017, Mr TA retained Mr UD to advise how best to resolve his differences with Mr VG concerning co-ownership of the property.

[81] Mr UD initially assisted Mr TA with Mr TA’s complaint about Mr SM. Later that year, from 10 October 2017, he returned to consider Mr TA’s concerns with co-ownership of the property.

[82] By 21 December 2017 Mr TA had provided Mr UD with background information required by Mr UD. He informed Mr UD that with the Christmas/New Year holiday period imminent he understood that Mr UD may not be able to respond until the new year.

[83] Mr UD did not respond to Mr TA’s 21 December 2017 email, or to either of

Mr TA’s 18 January and 17 February 2018 follow-up emails. Although Mr TA, in his 17

February 2018 follow-up email, asked if Mr UD was “still interested in representing”

Mr TA, I do not regard or interpret this as termination of the retainer by Mr TA.

[84] Instead, as I have noted, on 1 March 2018 Mr UD informed (via email) Mr TA that “due to pressure of work” he was “unable to accept instructions” from Mr TA on that matter. He added that Mr TA would be “best advised to consult a lawyer in [City], near to where the problem is”. In reply that day, Mr TA stated “you could have told me earlier”.

[85] As noted above, once a lawyer has commenced acting for a client on a retainer, then, unless one or more of the exceptions in r 4.2.1 apply, the lawyer must complete the required legal work. Unavailability due to other work commitments does not constitute good cause as a justification for termination by the lawyer.

[86] No evidence has been produced that Mr UD terminated the retainer for any of the “good cause” exceptions described in rule 4.2.1, including that Mr TA’s instructions would require Mr UD to breach any professional obligation. Mr TA had, on 1 December

2017, informed (via email) Mr UD that he had funds to pay Mr UD’s legal fees. Mr UD does not claim that he had been misled or deceived by Mr TA, or that Mr TA had delayed providing the information requested.

[87] In Mr UD’s initial submission to this Office he said he “could foresee the

difficulties in the time involved dealing with” Mr TA whom he “had not met before and

was dealing with by way of email in a time zone 4 hours behind New Zealand”. However, such circumstances similarly do not fall within the exceptions in r 4.2.1.

[88] In his subsequent submissions, Mr UD further explains that although he wanted “to reach Mr TA’s work”, the volume of work he received in February 2018 “from existing and long-established clients” required “prioritisation”, and Mr TA’s work “was put to one side”.

[89] Mr UD explains that upon realising at the end of February he would be unable to attend to Mr TA’s work “for the foreseeable future”, he informed Mr TA he “could no longer accept [Mr TA’s] instructions”. In reaching that decision, he says as well as his existing clients, he also took into account his “own wellness in dealing with the pressure of work” which led to him having to “shed” Mr TA’s work.

[90] Although “a seriously adverse effect upon the lawyer’s health” may in certain circumstances constitute good cause entitling a lawyer to terminate a retainer, Mr UD, in effect, contends that he was entitled to terminate the retainer to avoid his “health and well-being” suffering from an “excessive” workload.22

[91] However, to my mind, termination on such grounds, if applicable, must be weighed against the fact that the firm had been acting for Mr TA since September 2016. Mr TA was an existing client. In my view, the professional approach for Mr UD to take would have been to decline to act on one, or more, of the February 2018 matters in respect of which he may have been able to legitimately say, for the purposes of rr 4 and

4.1, that he did not have “available time” to accept new instructions.

[92] Mr UD does not say so, but had he been unwell at that time, it is reasonable to expect he would have informed Mr TA of that fact, and if applicable, that he had obtained, or was to obtain, medical advice.

[93] Concerning the requirement in r 4.2.4 to “give reasonable assistance to the client to find another lawyer”, Mr UD explains that because he did not know any lawyers in [City], he was “in no better position” than Mr TA to find another lawyer which he would have done just as he says Mr TA did when Mr TA first instructed the firm.

[94] I have carefully considered all of the material put before me on this review. It is my view that Mr UD ought to have extended the courtesy to Mr TA, from whom he had accepted instructions, of explaining why he could not continue with those instructions.

22 Dal Pont at [3.205].

[95] Assuming Mr TA agreed with that approach, then it was Mr UD’s duty to assist Mr TA to find another lawyer by at least referring him to the Find a Lawyer section of the Law Society’s website. Instead, Mr UD sent Mr TA the briefest of email messages, without explanation, that he could no longer carry out Mr TA’s instructions.

[96] By not doing so, the conclusion I have reached is that Mr UD contravened r

4.2(c) by terminating the retainer without good cause, and r 4.2.4 by not providing reasonable assistance to Mr TA to find another lawyer to represent him, which also constitutes unsatisfactory conduct under section 12(c) of the Act.

Decision

[97] For the above reasons, pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006, the decision of the Standards Committee to take no further action on Mr TA’s complaint is reversed and substituted with the findings that Mr UD:

(a) By failing to respond to Mr TA’s enquiries in a timely manner, and

promptly, contravened rr 3, 3.2 and 7.2; and

(b) By terminating the retainer with Mr TA without good cause, and by not giving reasonable assistance to Mr TA to find another lawyer, contravened rules 4.2(c), and 4.2.4,

which constitutes unsatisfactory conduct under section 12(c) of the Act.

Orders

[98] In giving consideration as to whether it is appropriate to order a penalty, I refer to the guidance provided by the High Court which has stated that the “predominant purposes [of orders] are to advance the public interest (which include “protection of the public”), to maintain professional standards, to impose sanctions on a practitioner for breach of his/her duties, and to provide scope for rehabilitation in appropriate cases”.23

[99] I have concluded that in these particular circumstances a finding of a contravention of the rules which constitutes unsatisfactory conduct is sufficient in itself without additional penalty. In reaching that conclusion, I place particular emphasis on the following:

_{(a) The need to ensure that rules are interpreted fairly and sensibly.}

23 Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] NZHC 1359; [2011] 3 NZLR 850 (HC). See also s 3 of the Act, the consumer protection purposes.

(b) A careful consideration of the context in which the complaint arose. (c) Mr UD’s apology for not responding to Mr TA’s enquiries earlier.

(d) Mr UD’s frank and honest, albeit mistaken, belief that having accepted instructions to act for a client, he could later decide that other clients’ work took priority, and that he need take no steps to assist Mr TA to find another lawyer.

(e) Mr UD’s submission that after 44 years in full-time legal practice he is now working reduced hours.

Anonymised publication

[100] 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.

_{DATED this 31st day of October 2019}

B A Galloway

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 TA, as the Applicant

Mr UD, as the Respondent

Central Standards Committee 2

New Zealand Law Society