AA v BB [2019] NZLCRO 125 (28 November 2019)

Last Updated: 16 January 2020

LCRO 216/2018

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 AA

_Applicant

AND BB

_Respondent

_DECISION

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

Introduction

[1] Mr AA has applied to review 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 BB.

Background

[2] This is the third of three reviews filed by Mr AA, all of which arose out of the same unfortunate circumstances.

[3] I propose to but briefly address the background to this application, that background having been summarised in the earlier decisions issued.

[4] [JDY] Limited had obtained a judgment against Mr AA in the District Court. [5] Mr CC had represented Mr AA in the District Court proceedings.

[6] On 17 July 2017, Mr CC provided Ms BB with instructions to act for Mr and Mrs AA, those instructions being to provide an opinion regarding the possibility of successfully pursuing an appeal against the District Court decision.

[7] In the course of preparing her opinion, Ms BB was asked to provide further advice on matters relating to cost issues.

[8] Ms BB provided her opinion on 31 July 2017.

[9] On 1 August 2017, Mr CC advised Ms BB, that Mr AA did not wish to proceed with an appeal. He did however indicate that he wished to proceed with a claim in negligence, and to make an application for stay.

[10] On 25 October 2017, Mr CC forwarded to Ms BB a letter of demand from [JDY]’s lawyer. That letter of demand advised, that a charging order had been obtained over Mr AA’s property.

[11] Ms BB advised Mr AA that she did not have capacity to deal with the issues raised by the lodging of the charging order, a matter which she considered required urgent attention. She explained to him that she had been able to arrange alternative representation, and sought Mr AA’s consent to have the barrister she had consulted, instructed. The file was passed over to this barrister on 26 October 2016.

The complaint and the Standards Committee decision

[12] Mr AA lodged a complaint with the New Zealand Law Society’s Lawyers Complaints Service (NZLS) on 15 February 2018. The substance of his complaint was that:

(a) instructions had been provided to Ms BB on 16 August 2017 to file an application for a stay of proceedings, and to proceed with a negligence action; and

(a) subsequent to providing those instructions Ms BB did not communicate with him until 1 and 4 October 2017; and

(b) Ms BB had advised that she could not proceed with the case until her account was paid; and

(c) funds had been paid into Ms BB’s instructing solicitor’s account; and

(d) opposing counsel had advised that the court had no jurisdiction to entertain an application for stay of enforcement; and

(e) as a consequence, Ms BB’s advice had been incorrect.

[13] Ms BB provided a response to Mr AA’s complaint on 7 March 2018. She submits that:

(a) her advice to apply for a stay of enforcement would have been proceeded on different grounds as to those suggested by opposing counsel’s lawyer, but in any event it is commonplace for lawyers to disagree on issues of legal strategy; and

(b) she was unable to draft proceedings until she was in receipt of all relevant information; and

(c) concerns regarding payment of her fees had not been addressed until

4 October 2017; and

(d) fees charged had been considerably discounted; and

(e) she had taken instructions on a limited brief, and did not have capacity to carry out additional work.

[14] The Standards Committee identified the issues to be considered as: (a) Was Ms BB negligent in providing Mr AA with incorrect advice?

(b) Was the fee rendered by Ms BB for her services between 20 July 2017 and 31 August 2017 fair and reasonable in all the circumstances?

(c) Had Ms BB provided incorrect advice?

(d) Were the fees charged fair and reasonable?

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

[16] 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.

[17] In reaching that decision the Committee concluded that: (a) Ms BB had not provided incorrect advice to Mr AA.

(b) Ms BB had acted in a competent and timely manner throughout. (c) Ms BB had responded promptly to requests for information.

(d) Fees charged were fair and reasonable.

Application for review

[18] Mr AA filed an application for review on 21 November 2018. [19] He submits that:

(a) his complaint had not been adequately addressed by the Committee; and

(b) Ms BB had indicated that she would endeavour to seek consent to a stay of enforcement but failed to do so; and

(c) fees were paid immediately on receiving an invoice; and

(d) there had been inappropriate delay in preparing draft proceedings; and

(e) the Committee had misunderstood his complaint when it concluded that he had complained about fees; and

(f) his complaint had not been about Ms BB’s fees, but rather complaint that the barrister she had passed the file onto, charged an hourly rate considerably higher than that charged by Ms BB.

[20] By way of outcome, Mr AA sought:

(a) recognition from someone in authority that he had been victimised twice: first by the initial offender, and then by the lawyers who he had instructed to assist him.1

(b) if as a result of the review process, there was to be recognition that Mr AA (and his wife) had been victimised by the process, a measure of compensation would be appropriate.

_{[21] Ms BB was invited to comment on Mr AA’s review application.}

1 Mr AA was referencing [JDY].

[22] Through her counsel, it is submitted for Ms BB that:

(a) On commencement of drafting pleadings, Ms BB realised that Mr AA

would have to provide her with further information; and

(b) that information was not received until 25 September 2017; and

(c) fees were not paid until 5 October 2017; and

(d) Ms BB considered it unlikely that [JDY] would commence enforcement proceedings before costs had been determined by the court; and

(e) neither Ms BB nor Mr CC had anticipated that [JDY] would contemplate registering a charging order; and

(f) in proper recognition of the fact that her work commitments did not allow her opportunity to take on the task of addressing issues arising from the registering of the charging order, Ms BB without cost or expense to Mr AA, organised the file for an efficient handover to a barrister who she had established would be available to represent Mr AA (Mr DD); and

(g) initial information provided by Mr AA to support the advancing of a negligence claim, was inadequate; and

(h) the scope of Ms BB’s brief had been relatively confined; and

(i) Mr CC continued to manage issues relating to the summary judgment and correspondence with [JDY]’s lawyer up until 4 October 2017; and

(j) whilst not privy to advice provided by Mr DD to Mr AA, it was Ms BB’s view, that there was in fact no material difference in the level of fees charged between Ms BB and Mr DD; and

(k) in any event, fees charged by Mr DD were a matter for him to determine;

and

(l) Ms BB had expressly sought consent from Mr AA to have Mr DD instructed, this availing Mr AA of an opportunity to instruct a different barrister if he wished to do so.

[23] Mr AA provided a brief response to the submissions advanced for Ms BB. In essence, those submissions repeated complaint that Ms BB had failed to act promptly,

in particular, to progress the proposed negligence claim, and reiterated that Mr AA felt that he had little option but to engage Mr DD.

Hearing

[24] An applicant only hearing proceeded on 3 October 2019. Mr AA was accompanied at the hearing by his wife.

[25] Subsequent the hearing, I made request of Ms BB’s counsel to provide submissions on the issue as to the circumstances surrounding Ms BB’s decision to terminate the retainer. Those submissions, received on 7 October 2019, were provided to Mr AA, with indication that he would be informed if I required him to provide a response to the additional submissions filed.

[26] Having considered the submissions received from Ms BB’s counsel, I concluded

that I did not require a response from Mr AA.

Nature and scope of review

[27] 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.

[28] 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

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].

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

Committee’s determination.

[29] 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

[30] The issues to be considered on review are:

(a) Did Ms BB fail to competently represent Mr AA?

(b) Did Ms BB terminate the retainer without good cause?

Did Ms BB fail to competently represent Mr AA?

[31] The criticisms that Mr AA has of the representation he received from Ms BB

were that:

(a) she provided inaccurate advice as to the legal remedies that were available to him: and

(b) she failed to act promptly; and

(c) she failed to keep him informed.

[32] When Ms BB first took instructions, it was in circumstances where judgment had been entered against Mr AA.

[33] Having had the benefit, as I have, of considering two other review applications advanced by Mr AA (both of which arise from the same context of events as this one, being the dispute with [JDY]), I am mindful that for Mr AA and his wife, the dispute they became engaged in with [JDY], had exacted a considerable emotional and financial toll.

[34] Mr AA says that he was badly let down by a builder who failed to properly carry out repair work to his badly damaged home.

[35] He considers that none of the lawyers engaged to represent him, had capably assisted him in navigating a path through his legal difficulties. This frustration with, and lack of confidence in, the process, manifestly amplified by the fact that two of the lawyers he had engaged terminated their retainer with him.

[36] It is from that background, that Mr AA has formed a view that the justice system is fundamentally flawed.

[37] Having had opportunity to hear from Mr AA, and having, as has been noted, dealt with a number of his review applications, it is compellingly clear that Mr AA has a genuine and sincerely held conviction that he has been badly let down by the various lawyers who have represented him.

[38] Parties involved in civil litigation frequently find the process stressful. Mr AA’s anxiety was heightened by the fact that his legal representation suffered from a lack of continuity. He makes complaint that he was constantly having to explain the background to his case to a new face, and on what was more than one occasion, compromised by circumstances which presented him with little opportunity but to adopt the recommendations of his former lawyers as to the choice of alternative counsel to represent him.

[39] The complaints Mr AA advances against Ms BB, add to the many concerns he has regarding the representation provided by the lawyers who preceded Ms BB, and magnifies his view that he was not being well served by those who worked in the justice system.

[40] This is sharply reflected in the manner in which Mr AA describes the objectives he seeks to achieve in advancing his review. Those objectives are not described in terms which present as providing response to particular concerns regarding Ms BB’s conduct but rather are framed in a more wide-ranging request that the outcome of his review provide an acknowledgement of the extent to which he has been ill served, (his position set out in p.20 above).4

[41] I touch on that background to recognise the broader context from which Mr AA advances his complaints against Ms BB, and to recognise the difficulties that Mr AA and his wife experienced.

[42] But the focus for this review must be on the specific complaints that are made concerning Ms BB’s conduct, the first of which was that Ms BB had incorrectly advised

4 See [20].

Mr AA that his best approach to attacking the judgment, was not to progress an appeal but rather to apply for a stay of enforcement, and to commence an action in negligence.

[43] Mr AA’s criticism of the approach suggested by Ms BB are twofold. Firstly, he says that Ms BB in suggesting that an application for a stay of enforcement be filed, failed to recognise that there was no jurisdiction to make such an application. Secondly, he complains that Ms BB delayed in taking steps to draft proceedings, and that this delay provided opportunity for the plaintiff to commence enforcement proceedings.

[44] In advancing argument that Ms BB has recommended a legal strategy that was not achievable, Mr AA provides no legal analysis to substantiate his position; rather, he relies on argument that opposing counsel had suggested that Ms BB had no grounds to advance a stay application. Ms BB’s proposed approach was wrong says Mr AA because opposing counsel said it was wrong.

[45] Ms BB rejects suggestion that there were no grounds to file an application for a stay of enforcement. She considered that opposing counsel’s view that an application could not be made, was an assessment made without a proper consideration of the basis on which she was proposing to advance the application. It was Ms BB’s view that an application for a stay of enforcement could be made on grounds that there was evidence of [JDY]’s insolvency, and that evidence combined with submission that there was a reasonably arguable case to advance, may well have persuaded the court to entertain an application to stay any enforcement procedures.

[46] It is important to emphasise, that the process of advancing litigation before the court can be and frequently is, an evolving process in which lawyers are frequently called on to make decisions concerning the appropriate litigation strategy to follow. On occasions, lawyers will disagree as to what steps should have been taken in particular circumstances. The fact that lawyers may disagree on an approach, does not necessarily mean that either are wrong.

[47] Nor is it the task of a Standards Committee, or the Review Office, to provide an overarching supervision of the litigation strategies adopted by lawyers in the course of their conducting litigation before the Court.

[48] In Auckland Standards Committee 3 v Castles, the Lawyers and Conveyancers Disciplinary Tribunal noted that “... it is not this Tribunal’s role to closely analyse and second-guess every move of counsel during each piece of litigation. We consider our role is to take an overview and to look at patterns of behaviour”.5

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

[49] In an unpublished decision of this Office, LCRO 262/2014, the Review Officer had this to say of the approach lawyers adopt when engaged in litigation:

[116] Although there are rules of engagement for litigation, such as procedural and evidential rules, as well as the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules)), the conduct of litigation is largely an inexact science driven by tactical and strategic decisions made by the opposing parties.

[117] One lawyer’s view of the most effective strategy to conduct litigation may be diametrically opposed to another lawyer’s view and, absent incompetence, it is not always possible to determine which view is the better.

[118] Again, absent incompetence, tactical and strategic advice given by lawyers to their clients will be informed by that lawyer’s experience as well as their assessment of the other party’s position. It is, in many respects, a battle of wits and wills.

[50] I am not persuaded that Ms BB’s intimation of intention to proceed with an application to stay enforcement of the judgment is indication of her failing to provide competent advice to Mr AA.

[51] Mere indication from opposing counsel that he did not consider that Ms BB was able to progress a stay application is not evidence of her inability to do so. Ms BB considered that if it was established that [JDY] was insolvent (which she believed the company was), this may be sufficient in conjunction with the negligence proceedings, to persuade the court to grant a stay.

[52] The merit or otherwise of the strategy proposed by Ms BB cannot be determined by a Legal Complaints Review Officer, but rather is a matter which would fall to a court to determine.

[53] Mr AA makes complaint that Ms BB failed to act promptly. His concern is that her delay in attending to filing proceedings, provided opportunity for [JDY] to secure a charging order over his family home.

[54] In 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.6

[55] Ms BB says there were two reasons as to why there was a measure of delay in finalising the proceedings. Firstly, she contends that she did not, when first taking instructions, have sufficient information to prepare the claim. Secondly, she says that

6 Rules 3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules).

she was reluctant to attend to finalising the proceedings whilst an invoice she had rendered remained unpaid.

[56] Ms BB’s initial instructions were to provide an opinion as to the possibility of appealing the District Court judgment, together with an assessment as to whether there were grounds to advance a counterclaim.

[57] Instructions were received on 17 July 2017. She provided her opinion on

31 July 2017.

[58] No concern is expressed at the time taken by Ms BB to provide the initial opinion.

[59] On 1 August 2017, Ms BB’s instructing solicitor advised Ms BB that Mr and Mrs AA had considered her opinion, and having done so, had decided to follow Ms BB’s recommendation to commence proceedings against [JDY].

[60] On 2 August 2017, Ms BB advised her instructing solicitor, that she would be absent from her office for the remainder of the week, and that it would be her intention to commence work on drafting proceedings the following week.

[61] On 9 August 2017, Ms BB made request of her instructing solicitor to provide her with further information.

[62] On 15 August 2017, Ms BB emailed her instructing solicitor to advise that she was still lacking sufficient information to adequately quantify the claim. She advised that she needed to meet with Mr AA.

[63] Ms BB met with Mr AA and his family members on 16 August 2017. Ms BB says that at that meeting, she had a comprehensive discussion with Mr AA and set out for him in detail, the information that she required him to provide. She says that it was made clear that she would not be in a position to draft the proceedings until she had sufficient information to do so.

[64] Ms BB says that the additional information she required from Mr AA, was forwarded to her on the evening of 25 September 2017, some six weeks after her meeting with Mr AA on 16 August. It was this delay says Ms BB, that most significantly impacted on her ability to finalise the proceedings.

[65] Mr AA submits that Ms BB had sufficient information to enable her to commence drafting the proceedings, and argues that all the relevant documents were in her

possession. He contends that the additional information he was asked to provide was simply in the nature of updating information.

[66] I accept Ms BB’s submission that she was unable to proceed with drafting the pleadings until she was satisfied that she had the necessary information to do so. She correctly notes that counsel can leave themselves open to criticism (and compromise their client’s case) if proceedings are drafted hastily without care being taken to obtain all relevant information. Of particular importance, is the need to accurately quantify the claim.

[67] It was for Ms BB to make a professional judgement as to whether she required further information, and she considered that she did.

[68] Her argument that she did not have all the relevant information necessary for her to proceed, is clearly not an argument of convenience raised to provide justification for delay. When first she had opportunity to turn her attention to the claim, she immediately identified the need for further information. This was signalled to her instructing solicitor on 9 August 2017. On receiving further information, Ms BB considered that information and concluded that more was required. She notified her instructing solicitor on 15 August 2017 that she still had insufficient information to quantify the claim. At her meeting with Mr AA on 16 August 2017, Ms BB particularised for her clients the information she required, and tasked them with providing it.

[69] I do not accept Mr AA’s submission that the affidavit he had filed in the summary judgment proceedings provided sufficient information for Ms BB to proceed with drafting a properly quantified negligence claim, and that is reinforced by an examination of the information Mr AA provided to Ms BB on 25 September 2017. In the affidavit filed with the court in December 2016, Mr AA deposed that he had received costing for repair work required and estimated those costs to be in the vicinity of $59,957.10. In the information provided to Ms BB, Mr AA quantified his claim in the sum of $96,736.08. That sum was broken down under seven heads of claim.

[70] I am satisfied that Ms BB’s insistence on ensuring that the claim be accurately quantified, was a significant factor in preventing her from attending to finalising the proceedings earlier than she had anticipated.

[71] After receiving the requested information from Mr AA, competing work commitments prevented Ms BB from attending to finalising drafting of the claim. It was regrettable that Ms BB was unable to commence the drafting immediately, but I do not consider that the delay that occurred from the time she received the information from Mr AA to the time she was advised that a charging order had been lodged, was of

sufficient duration to reasonably raise issue as to whether the delay merited a disciplinary response.

[72] Ms BB suggests that a measure of delay was occasioned by concerns regarding payment of her account.

[73] I put little weight on this argument. Any problems with settling her account appear to have resulted from a breakdown in communication. Mr AA paid funds into Ms BB’s instructing solicitor’s account when asked to do so. It appears to be the case that the funds were not transferred as promptly as they could have been, but I do not conclude that issues relating to Ms BB’s account were of any material significance in contributing to delay. The main factor in the delay was the time involved in collating information necessary to adequately particularise the claim.

Did Ms BB’s termination of the retainer compromise Mr AA’s ability to engage fresh

counsel on terms amenable to him?

[74] The Committee identified as one of the grounds of its inquiry, consideration as to whether the fees charged by Ms BB were fair and reasonable.

[75] On review, Mr AA argues that the Committee misunderstood his complaint. He says that he had never complained about the fee charged by Ms BB; rather his concern was that when Ms BB advised that she could not attend to the work involved in responding to the charging order, Ms BB had passed his case on to Mr DD without informing him that Mr DD’s fees would be four times higher than hers. Mr AA explains his position as follows:7

We never complained about the amount charged for her services by Ms BB. Our complaint about fees was regarding the fact that she didn’t give us any choice but to accept to pass our case on to Mr DD without mentioning to us that his fees were 4 times higher (she told us during our meeting that the cost to apply for the stay and the negligence claim would be about $5000, instead Mr DD was talking more of $20,000) and as we quoted in our letter of 15/3/2018: we could not afford it and so we have been forced to accept a form of a final settlement for paying

$33,000 and, worse yet, without any chance to make our counterclaim.

[76] Mr AA did not, when lodging his initial complaint, signal that he was concerned about the fee charged by Ms BB. He is correct then when he says that the Committee

_{addressed an issue about which he had not raised.}

7 Application for review (20 November 2018).

[77] On review, Mr AA characterises his complaint as being concern that Ms BB had left him with no choice but to instruct Mr DD. It is, in essence, complaint that Ms BB terminated the retainer without good cause.

[78] Having not directly raised that concern in his initial complaint, the Committee understandably did not address it.

[79] A Review Officer cannot consider fresh complaints that are raised on review. However, whilst Mr AA did not clearly articulate the concern he now identifies, I am prepared to consider matters arising from the transfer of the file as I am satisfied that when Mr AA expressed concern that he was given “no choice” but to accept suggestion that Mr DD take over from Ms BB, his intention was to express a dissatisfaction that Ms BB failed to complete the retainer.

[80] I have given consideration to returning the matter to the Committee, to consider the circumstances in which the retainer ended, but I consider that I have sufficient information before me to address that issue and think it in the best interests of ensuring an expeditious resolution for the parties that I do so.

[81] Importantly, I am satisfied that Ms BB has in the additional submissions filed by her counsel, had adequate opportunity to respond to criticism that she terminated the retainer without good cause.

[82] It was unfortunate for Mr AA that Ms BB was unable to complete the retainer, particularly when the lawyer Mr AA had instructed to defend the summary judgment proceedings was also unable to continue to represent Mr AA.

[83] It was understandable that Mr AA felt that his case had been compromised by his counsel withdrawing at critical stages of the proceedings.

[84] The question is, was Ms BB obliged to continue acting for Mr AA when [JDY]

commenced enforcement proceedings?

[85] That question necessarily involves an examination of the breadth and scope of

Ms BB’s obligations under the retainer.

[86] A lawyer who has been retained by a client must complete the regulated services required by the client under the retainer unless:

(a) the lawyer is discharged from the engagement by the client; or

(b) the lawyer and the client have agreed that the lawyer is no longer to act for the client; or

(c) the lawyer terminates the retainer for good cause after giving reasonable notice to the client specifying the grounds for termination.8

[87] The circumstances in which a lawyer may terminate a retainer for good cause include, as set out in r 4.2.1 below:

Duty to complete retainer

...

4.2.1 Good cause includes—

(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 to the lawyer in a sufficiently

timely way:

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

...

[88] Ms BB’s initial instructions were to prepare an opinion. [89] Those instructions were limited.

[90] As matters progressed, it was clear that her instructing solicitor required her assistance to resolve cost issues. Whilst Ms BB had not been initially engaged to provide advice on costs, she was prepared to assist.

[91] On receiving advice from Mr AA that he had considered Ms BB’s opinion, and wished to proceed with a negligence claim, Ms BB confirmed that she was available and prepared to manage the negligence claim.

_{[92] Ms BB was, at this point, taking fresh instructions. This was a new retainer.}

8 Rule 4.2 of the Rules.

[93] When she learnt that a claim had been registered against Mr AA’s property, Ms BB was forced to reassess her position. Ms BB says that the claim needed to be responded to immediately. The charging order had been registered over Mr AA’s home on 12 October 2017. Ms BB’s instructing solicitor received notice of the claim on

25 October 2017. In that correspondence, [JDY]’s counsel indicated a deadline of five working days to satisfy the demand. Ms BB says that she did not have capacity to attend to the work required, as she was at this time, heavily engaged in preparing for a three- day hearing that was to proceed the following week.

[94] In what could fairly be described as a refreshingly frank admission, Ms BB expressed concern as to whether she had sufficient experience dealing with what presented as a potential application for a writ of sale. She could not, to the best of her recollection, recall having ever dealt with such an application in her practice, but if she had, it would likely have been in the period 1996–1998.

[95] Ms BB says that she gave consideration to whether it would be feasible for her to continue to represent Mr AA in the damages claim but concluded that it would be in Mr and Mrs AAs’ best interests if the lawyer instructed to act on the charging order matter, took over the case.

[96] Ms BB says that when the notice of claim was brought to her attention, she endeavoured to make contact with Mr CC but was unable to reach him. She then spoke to a number of barristers to endeavour to ascertain as to whether she could source a suitable barrister to take over the file. The third barrister she spoke to, Mr DD, indicated that he could take the file over. Mr DD is described by Ms BB as a “senior barrister”.

[97] Ms BB says that she then contacted Mr AA and explained the circumstances. She advised Mr AA that she did not have the capacity to attend to the file with the urgency it demanded because of her impending court commitments and sought Mr AA’s consent to instruct Mr DD.

[98] Ms BB assured Mr AA that the work she had completed on the file to date was valuable, and would not need to be replicated by counsel taking over the file.

[99] Ms BB said she was instructed by Mr AA to pass the file over to Mr DD.

[100] She says that she took care to ensure that the file was carefully prepared for

Mr DD.

[101] It is argued for Ms BB that she was able to decline to act on matters relating to the charging order, as the work engaged in defending the charging order constituted new instructions which Ms BB was entitled to refuse to accept under r 4.1.

[102] It is submitted that r 4.1 relates to “instructions” and engages a broader, more general concept than a retainer.

[103] I have difficulty accepting the proposition that receiving advice that a charging order had been lodged (which inevitably demanded an immediate response) constituted circumstances which could reasonably be described as amounting to a new retainer.

[104] The possibility of [JDY] taking steps to enforce a judgment obtained would have been obvious to any experienced litigation lawyer (as Ms BB was). One available option to a judgment creditor was to apply for a charging order, a creditor’s remedy that is frequently exercised.

[105] Having provided an opinion which recommended a course of action which included advice concerning steps to impede the judgment being enforced, and having accepted instructions to advance a litigation strategy in line with the recommendations she had made, it is my view that Ms BB would, as part of those instructions, be expected to assume responsibility for dealing with any enforcement issues arising from the judgment.

[106] However, I accept it as a reality for any busy litigation lawyer that there will be occasions when they are unable to complete work for a particular client, because of conflicting commitments.

[107] I accept that Ms BB was, when notified a charging order had been lodged, compromised in her ability to respond because of the pressure of work.

[108] It was prudent for Ms BB to recognise that her commitments to an impending trial prevented her from being able to give the necessary attention to a serious matter which had to be dealt with urgently. She appreciated immediately that the urgency of the matter demanded that fresh counsel be instructed promptly. It was also sensible for her to recognise that her client’s best interest would be served by instructing a lawyer who had expertise and experience in dealing with circumstances where a charging order executed over a client’s property, had real possibility of risking an application being made for sale of the property. Such an outcome, if it had proceeded, would have had catastrophic consequences for Mr and Mrs AA.

[109] Ms BB says that she discussed the option of transferring the file with Mr AA, and he agreed to that course of action.

[110] The situation was difficult for Mr AA, but I am satisfied that Ms BB was careful to ensure that Mr AA was fully informed of the circumstances that had prompted her to reflect on whether she was able to continue to provide representation to Mr AA, and having informed Mr AA of those circumstances, that it was he who made the decision to instruct Mr DD.

[111] Having confirmed his instructions that the file be transferred, Ms BB was absolved of responsibility to continue to provide regulated services to Mr AA by r 4.2(a) of the Rules, which provides that a lawyer is relieved of the responsibility to provide continuing representation to the client, in circumstances where the lawyer and the client agree that the lawyer is no longer to act for the client.

[112] Mr AA argues that his ability to continue with his intention to oppose the claim being advanced by [JDY], was compromised as a result of Ms BB being no longer able to represent him.

[113] He says that he was compelled to reach a settlement with [JDY], because he could not afford to continue to meet Mr DD’s fees.

[114] There is no evidence provided on review as to the estimates Mr DD provided to Mr AA for costs involved in pursuing litigation, however Ms BB believes that it may be the case that Mr AA misunderstood the parameters of the estimates provided by Mr DD. It was Ms BB’s view, having been copied into an email from Mr DD to Mr CC, that there was no material difference in the level of fees charged by Mr DD and herself.

[115] But having accepted that Ms BB discussed the situation with Mr AA and secured his agreement to the file being transferred, the arrangements subsequently made between Mr AA and Mr DD were a matter for them.

[116] I have emphasised that it was unfortunate that on two occasions, Mr AA was required to engage new counsel, but I am not persuaded that the criticisms he makes of Ms BB, were instrumental in him being coerced into reaching a settlement with [JDY].

[117] There would likely be a multitude of reasons as to why Mr AA would have decided to agree to a settlement of the dispute. That decision was made, with the assistance and advice of an experienced barrister.

[118] Mr AA considered that his capacity to proceed his claim was impeded because he was unable to afford to retain Mr DD, but it was open to him to seek to engage new counsel who could represent him at a suitable hourly rate.

[119] The proceedings had, regrettably, been financially draining for Mr AA before

Ms BB was instructed.

[120] Whilst he submits that he could not continue with the litigation because he could not afford to pay Mr DD, I think it probable that his position was (as it regrettably is for so many people who find themselves embroiled in litigating civil disputes) that the continuing burden of meeting legal costs had become so problematic, it demanded consideration as to whether it was cost-effective for him to continue with the litigation, particularly when the ongoing cost had to be assessed against the possibility of an adverse outcome.

Summary

[121] [JDY] had secured a judgment against Mr AA before Ms BB was instructed. He was on the backfoot when Ms BB was engaged. Ms BB’s initial brief was limited to providing an opinion as to whether there was a sound basis to appeal the District Court decision. Ms BB’s instructions took on a wider dimension, when she agreed (following a course of action recommended in the opinion provided) to draft proceedings in negligence together with an application to stay enforcement of the judgment. I am satisfied that there was some delay in assembling information to support the negligence claim, and that Ms BB was not responsible for that delay. Proceedings could have been drafted more promptly once Ms BB was in receipt of the necessary information, but the delay at this juncture was not of sufficient seriousness to merit consideration of a disciplinary response. Ms BB did not consider she had adequate experience in dealing with applications involving writs of sale. She felt her client’s best interests would be served by her handing the file over to another practitioner. Ms BB discussed the situation with Mr AA. Mr AA agreed to the file being transferred.

[122] I am not persuaded that Ms BB terminated her retainer with Mr AA. Having concluded that she was unable to attend to aspects of the retainer that required immediate and urgent attention, she sought Mr AA’s consent to the file being passed on to another lawyer. That consent was provided.

[123] I see no grounds which could persuade me to depart from the Committee’s

decision.

Anonymised publication

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

Decision

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

Standards Committee is confirmed.

_{DATED this 28}th _{day of November 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 AA as the Applicant

Ms BB as the Respondent

Ms EE and Mr FF as the Respondent’s Representatives

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

Secretary for Justice