MO v FP [2019] NZLCRO 132 (13 December 2019)

Last Updated: 16 January 2020

LCRO 187/2017

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 MO

_Applicant

AND FP

_Respondent

_DECISION

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

_{been changed.}

Introduction

[1] Ms MO has applied for a review of a decision by the [Area] Standards

Committee [X].

[2] That decision concerns her 8 March 2017 complaint about the services provided by Mr FP of [YWOF] Lawyers (YWOF) in relation to her [City] earthquake claim, and the fees charged for those services.

[3] The bulk of the services were in fact performed by qualified employees of Mr FP

but Ms MO is adamant that her complaint is against Mr FP alone.

[4] Her objective was unclear from the complaint itself, but on review she clarified matters by expressing the desired outcome as being:

To be reimbursed for all costs that have occurred for my time with Mr FP. This includes any third party expenses.

Background

[5] In early 2014 Mr FP was approached by a number of (COMPANY A)1 policy holders who were unhappy with its performance on their earthquake claims.

[6] A self-funded class action was mooted. However not enough claimants came forward for that to proceed and the project was abandoned. No fees were charged on account of the project to those, including Ms MO, who had come forward.

[7] Ms MO’s personal problem was that neither EQC2 nor [COMPANY A] had accepted that her claim for earthquake damage exceeded the $100,000 cap, a state of affairs which was a prerequisite for [COMPANY A] to give her claim attention on its merits.

[8] When it became obvious that the class action project was in difficulty Ms MO, at the suggestion of [YWOF], gave instructions and confirmed terms of engagement on

24 July 2014 for the independent furtherance of her over-cap claim.

[9] The initial work was to cover preliminary work to show that the cap was exceeded, and the fee for that was to match the $1,250 she had paid in contemplation of the class action.

[10] The terms of engagement accepted by Ms MO specifically provided that [Company B] would be engaged (as was promptly done) to scope and quantify the works for the purposes of an over-cap submission to EQC.

[11] Subsequently, [Company C] Limited (an engineering firm) was engaged to identify the earthquake damage and advise as to reinstatement. The reports together indicated that Ms MO’s claim was over cap.

[12] By mid-2015 there were still not enough people on board to justify pursuit of the class action and that project was terminated.3

1 [Company A] was the government-owned company responsible for settling claims by [Insurance company X] policyholders for Canterbury earthquake damage which occurred before 5 April 2012. See [Company A] website.

2 The Earthquake Commission is a New Zealand Crown entity investing in natural disaster research, education and providing insurance to residential property owners. See https://www.eqc.govt.nz/about-eqc

3 Later on, a class action was mounted with an independent funder but at the time that occurred it was only open to claimants who had been accepted as over cap, a status Ms MO did not then have.

[13] In time recorded terms, [YWOF] had by then done $5,900 worth of work for Ms MO but she was only billed for a GST inclusive $1,250, the amount she had initially contributed towards the originally contemplated class action.

[14] On 6 August 2015 Ms MO signed new, and comprehensive terms of engagement with [YWOF] which included the statement that [YWOF] would generally bill every month. The terms provided for the payment of fees that were fair and reasonable to both parties and incorporated the factors set out in r 9.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules).

[15] On the same day, Mr FP introduced Ms MO to UI. She was the senior solicitor to whom he was designating the handling of Ms MO’s file. At this meeting progress to date was reviewed and the next steps to be taken were discussed. Ms MO recognised that litigation might be necessary to get her claim accepted as over cap.

[16] Ms MO’s complaint (identified just below) relates to events between approximately mid-2015 and July 2016 when she terminated her instructions and, to the extent necessary for the purposes of this decision, those will be referred to in what follows.

The complaint and the Standards Committee decision

[17] Ms MO lodged her complaint with the New Zealand Law Society Lawyers Complaints Service on or about 8 March 2017. It was lengthy and discursive, making it difficult to identify what conduct issues might require attention under the Act or the Rules.

[18] Ms MO began by saying that her complaint was about fees charged and Mr FP’s conduct, including his treatment of her, but under the heading ‘specifics’ she set out some 159 paragraphs that included:

(a) various lengthy details of her dissatisfaction with the quality of the expert reports obtained on her behalf;

(b) what she had picked up as descriptive errors made by Mr FP;

(c) complaints of failure to adequately keep her up to date and discuss expert reports with her;

(d) keeping an [COMPANY B] invoice from her;

(e) expressions of her personal opinions on the extent of earthquake related damage and the remediation required;

(f) differences between what she made of expert reports and what she saw

[YWOF]’s lawyers had made of them;

(g) mention that she found Ms UI’s approach to her case confusing;

(h) dwelling at length on her perspective of what was discussed and/or revealed at site meetings with experts;

(i) complaints that on numerous occasions Ms UI had taken steps in her case without specific instructions to do so;

(j) complaints that much of the work charged for had lacked utility;

(k) argument that Ms UI’s treatment of a significant draft letter to EQC was unsatisfactory;

(l) writing at length about her dissatisfaction with Mr FP and Ms UI over their alleged approach to invasive testing issues;

(m) asserting that she had been led to pay for reports – particularly from an entity called [Company D] which apparently had expertise in construction matters concerning concrete – that in her view were quite unsatisfactory;

(n) complaining that the whole process with [YWOF] had been unnecessarily

prolonged and in the end “useless”; and

(o) she ended with the submission that although she referred to a range of what she termed specific incidents, these revealed a “pattern of conduct inconsistent with the professional obligations set out in the Act and the Rules”.

The Standards Committee decision

[19] The Standards Committee delivered its decision on 3 September 2017. [20] In reaching its decision the Committee concluded that:

(a) a number of the matters raised by Ms MO did not warrant any inquiry –

see s 137(1)(a) of the Act; and

(b) as to the remainder into which it did inquire, pursuant to s 138(2) of the Act, no further action was necessary or appropriate; that being a decision reached “having considered all the correspondence received from the parties”.

[21] Those conclusions were prefaced by identification of the questions raised as to whether:

(a) given Mr FP’s limited personal involvement in the matter, the complaint raised issues of competent supervision and management of employees – r 11.3 of the Rules;

(b) experts were engaged without client authority; (c) there was undue delay in billing;

(d) the fees charged were fair and reasonable in terms of rr 9 and 9.1 of the

Rules;

(e) any issue arose from the experts’ fees incurred.

[22] As to supervision the Committee found that:

(a) Ms UI had the necessary experience and expertise to handle Ms MO’s claim and nothing disclosed was indicative of other than competent handling of that;

(b) Mr FP appeared to have been adequately kept up to date with her progression of the claim; so that

(c) further inquiry of those matters was unnecessary and inappropriate. [23] As to instruction of experts, particularly [COMPANY B], it found that:

(a) the rules potentially engaged were rr 7.1 (consultation about steps to be taken to implement instructions) and 13.3 (keeping client informed of decisions to be made);

(b) Ms MO’s claim that “[Company B] were engaged by [YWOF] Lawyers and not on my instructions” was belied by a 2014 terms of engagement provision that “Upon receipt of your confirmation (which was given), we will engage [Company B] to produce a scope of works and repair estimate.

...”; and

(c) given too that Ms MO had been in subsequent contact with [COMPANY B] herself, further inquiry of this issue of complaint was unnecessary and inappropriate.

[24] As to billing delay:

(a) Ms MO had a legitimate expectation that she would be billed monthly;

(b) but there was no professional obligation to do that and the 6 August 2015 terms of engagement had not been absolute in that regard;

(c) it was the kind of case where deferred billing would not be uncommon and there was no evidence that Ms MO had asked for regular bills;

(d) three months was a reasonable period to render the final account; so

(e) further inquiry was unnecessary and inappropriate. [25] As to fairness and reasonableness of fees charged:

(a) when viewed in the light of r 9.1 of the Rules, the fees charged were consistent with the value of the work done; especially as

(b) they represented less than the time recorded; and

(c) Ms MO had been aware of the charging rates; and

(d) the claim was of considerable importance to Ms MO; and

(e) those dealing with the claim were competent to do so; and

(f) the claim was dependent on expert advice which Ms MO was prone to query; and

(g) they reflected market rates. [26] As to third party expenses:

(a) it appeared that these had either been incurred by Ms MO or on her instructions; and in any event

(b) the Committee was not well placed (jurisdictionally or otherwise) to determine matters of reasonableness or liability related to those expenses; so

(c) further inquiry of this issue was inappropriate.

Application for review

[27] Ms MO filed an application for review on 5 October 2017. The outcome sought is “to be reimbursed for all costs that have occurred for my time with Mr FP. This includes any third party expenses”.

[28] The central grounds raised in support of the review application appear to be that:

(a) Erroneous conclusions by the Committee are indicative of an absence of full consideration of the complaint;

(b) given her amplification of (a) together with matters she discovered after the engagement of other lawyers, and upon the subsequent transfer of her claim to [COMPANY A] by EQC, there is demonstrable evidence of a failure by Mr FP to properly discharge his professional duties;

(c) information referred to in her commentary on (b) could not be shared previously because “Mr FP is privy to what I write and EQC had not passed the claim on to [Company A]”.

[29] As best I can follow her amplification of (a), it included that:

(a) The Committee had been misled by Mr FP as to the number of expert reports;

(b) her own analysis of the [YWOF] files showed those to be variously at odds with Mr FP’s response to her complaint;

(c) the Committee had failed to identify matters of fact pertinent to her complaint;

(d) the Committee had underestimated Mr FP’s direct involvement in her

claim;

(e) Mr FP was compromised by his personal association with various of the experts;

(f) the work done had been of no value to her;

(g) her ability to query charges in relation to the work done had been compromised by the absence of interim billing which she had requested on an unspecified occasion;

(h) on any view, an [COMPANY B] invoice that was revealed late in the piece was unjustified and Mr FP’s reluctance until the end to refer that to her might be thought to confirm an absence of justification;

(i) as for the third party fees, these were for reports that were of no value.

Mr FP should have had them “annulled”; and

(j) that [COMPANY A] had taken on the claim after she changed lawyers itself spoke of unsatisfactory work by [YWOF].

[30] As best I can understand it, her amplification of (b) included that:

(a) in contrast to the case when Mr FP and his staff had the carriage of the matter, the new lawyers, aided by expert evidence that Ms MO says was competent, were able relatively quickly to accomplish the transfer of the claim from EQC to [COMPANY A];

(b) a report from [COMPANY D] upon which Mr FP and his team placed much store was revealed in this process to have failed to identify how substantial the earthquake impact was on the integrity of her house, and reliance on it would have left the house well short of rectification of its significant structural damage.

[31] She further submitted in relation to (c):

(a) the [COMPANY D] report ought to be re-examined now that “the actual facts (were) known”; as

(b) the time taken and charged for in regard to it, had a significant impact on the fees she had incurred with [YWOF];

(c) the value of report work done by [Company C] should be dismissed out of hand as flawed or at least reviewed for reasons including that the new lawyers were reportedly critical of [Company C] and it had allegedly been discredited by a court in another case;

(d) she now knew that [YWOF] ought to have engaged geotechnical engineers as her new lawyers had done; and

(e) “new evidence” showed that bathroom and shower related problems had not been addressed by [COMPANY B] as should have been done.

[32] As well as the above, Ms MO subsequently corresponded with this Office and provided further material including engineering and related photographs.

Mr FP’s response

[33] Mr FP responded to Ms MO’s application for review on 26 October 2017. In doing so he set out Ms MO’s primary areas of concern as he said they appeared to him to be.

[34] He isolated the following as her concerns: (a) factual error by the Committee;

(b) incomplete consideration of all the materials by the Committee; (c) alleged delays on the part of [YWOF] and him particularly;

(d) that for a month there had been no operable letter of engagement;

(e) conflicts of interest on account of his relationship with [COMPANY B], [Company C], and [Company E] (another provider of expert advice mentioned in the review application in connection with [Company C]) had allegedly compromised the proper assessment of Ms MO’s case;

(f) alleged failure to keep Ms MO informed;

(g) the incurring of legal and third party expert fees, allegedly disproportionate to the progression of her claim.

[35] Mr FP went on to submit that:

(a) it had been for Ms MO first to identify a failure by the Committee to consider a matter of fact; and

(b) then to show that such failure was material, in that proper consideration of it by the Committee might reasonably have led to a different decision;

(c) the Standards Committee decision explicitly recorded that all that had been submitted had been considered; and

(d) Ms MO’s application identified personal dissatisfaction with, rather than substantive errors in, the decision.

Mr FP’s response to original complaint and Ms MO’s rejoinder

[36] On 5 May 2017 Mr FP had responded to Ms MO’s original complaint in considerable detail. He referred extensively to the detail of the retainer with Ms MO.

[37] To this, Ms MO proffered detailed comment on 6 June 2017.

[38] In light of Ms MO’s concerns about the Committee’s handling of the matter, I make clear that everything submitted both at the complaint and at this review stage, has been considered in the course of preparing this decision. That includes the submissions filed during the complaints process that preceded this review.

[39] I also note that if, when recording their decisions, Standards Committees and this Office were to stray from the crucial facts as identified by them and seek to go so far as to incorporate reference to every matter of fact (actual or alleged) adverted to by the parties, then the results would be unwieldy and unhelpful. To that comment I add what immediately follows.

Content of decisions

[40] It has frequently been observed that:

[It] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.4

[41] This is commonly cited when there is an issue about judicial impartiality, but it can also be read as more generally underscoring the natural justice related point that litigants should be able to understand what led a court or other adjudicative body to the outcome reached.

[42] However, that does not mean that a judgment or decision writer is obliged to refer to, let alone discuss, every aspect of each party’s case. Such an approach would have the capacity to overload adjudicative processes and bring them to a halt.

[43] This Office has previously said:5

[33] Mr ZA submits there is a mandatory obligation to consider and respond to every submission made by a complainant, or, in this case, an applicant. By not doing so, he submits, the Standards Committee breached the requirements of natural justice. I do not agree. In R v Nakhia6 the Court said:

As to the complaints in the motion that the Court did not deal with

_{certain submissions ... it may be observed that a belief on the part of}

4 R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, [1923] All ER 233.

5 ZA v YB LCRO 39/2016 (15 February 2017).

6 R v Nakhia (No 2) [1974] 1 NZLR 453 (CA).

counsel ... that his argument has not been fully understood or adequately discussed is by no means uncommon ... The Court is not obliged in giving its reasons for judgment to discuss every aspect of argument.

[34] The Court went on to refer to the observations of Diplock LJ in Hardwick

Game Farm v Suffolk Agricultural Poultry Producers Assn Ltd:7

In giving its reasons for judgment [a Court] is not composing a general lecture upon a legal topic: it is setting out as succinctly as the time available for preparation permits, those propositions of law which it considers are correct, and which are essential steps in the decision it has reached in the particular case. It is not obliged to state an answer to the arguments against the propositions of law which it accepts as correct and relevant to its decision whether such arguments have been addressed by counsel or not.

[35] Those principles apply equally, if not more so, to determinations by a Standards Committee (and this Office) where allegations and submissions by (in particular) complainants, are often made in a ‘scatter-gun’ manner and often without merit or substance. It would be an appalling misuse of the resources of Standards Committees and this Office, if the requirement is to specifically address every allegation and submission.

[44] I agree with those observations.

Review on the papers

[45] With the parties’ agreement, this review has been undertaken on the papers pursuant to s 206(2) of the Act. That provision allows a Legal Complaints Review Officer (LCRO) to conduct the review on the basis of all information available if the LCRO considers that the review can be adequately determined in the absence of the parties.

[46] 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.

[47] 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

[48] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:8

7 [1969] 2 AC 3.

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

... 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.

[49] More recently, the High Court has described a review by this Office in the following way:9

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.

[50] 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.

Analysis

The core issue in this case

[51] As I noted before, the remedy Ms MO seeks is that she “be reimbursed for all costs that have occurred (sic) or my time with Mr FP. This includes any third party expenses”.

[52] The reference to third party expenses is plainly one to the experts’ investigation

_{and report fees.}

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

[53] In seeking that remedy, Ms MO is really saying that nothing was achieved during the time that Mr FP and his firm were engaged on her behalf. To put her case in basic terms it was all a waste of time and money, because:

(a) Mr FP chose the wrong experts;

(b) those experts were, or in her case proved to be, incompetent;

(c) that led to an inability to persuade EQC that her claim was over cap;

(d) in contrast, that goal was achieved with relative promptness by her new lawyers who chose the right experts.

[54] I accept that in a case of this kind, were a lawyer to engage on their client’s behalf purported experts whose lack of competence would or ought to have been manifestly obvious to any competent lawyer at the time in question, then that would raise disciplinary issues.

[55] As well as r 3 of the Rules, s 12 of the Act would be engaged:

In this Act, unsatisfactory conduct, in relation to a lawyer or an incorporated law firm, means—

a) conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer

[56] I accept that Ms MO came to be dissatisfied with much of the work of the experts involved when she was represented by Mr FP’s firm. But even were it within this Office’s power to assess the competence of those experts and the quality of that work10, there would need to be evidence of incompetence from a person or persons qualified to express those opinions.

[57] Ms MO is obviously not so qualified.11 She does not disclose any relevant professional credentials; she simply offers her lay opinions. She provides her understandably subjective view of events.

10 In which case s 214 of the Act could not be overlooked. It reads: The Legal Complaints Review Officer may not, in any decision, direction, or order made under section 211 or in any report made under section 213, make any comment that is adverse to any person unless that person has been given a reasonable opportunity to be heard.

11 Note s 24 of the Evidence Act 2006.

Particular issues

[58] When Ms MO originally complained to the NZLS, her concerns included those set out at [18] above. On review, this Office does not reinvestigate the whole of the original complaint – its task is to approach and follow through on those matters that are particularly raised on review, adhering in doing so to the principles set out at [48] to [50] above.

[59] However, in this case the matters raised for review collectively put in issue virtually all that the Committee decided.

[60] I now refer and respond, to the extent I find necessary, to what I have identified as comprising the essence of Ms MO’s complaint:

(a) Ms MO has expressed at length her dissatisfaction with the quality of the expert reports obtained on her behalf – but of that dissatisfaction I need say no more than I said above at [56] and [57];

(b) as to what she picked up as descriptive errors made by Mr FP, none raise any disciplinary or other professional conduct issues;

(c) complaint of failure to keep her adequately up to date and discuss expert reports with her – while formal reports may have featured little, this was very plainly a case where Ms MO was following progress every step of the way. She did not, as some clients do, seek to hand off responsibility to the lawyers. That being the case, there was little if any need for formal reports – rr 7.1 and 7.2 of the Rules were not breached in any significant way;

(d) keeping an [COMPANY B] invoice from her – it appears that an invoice was withheld, but it is also obvious that the withholding was with good, if possibly misguided, intentions on account of Ms MO developing a highly negative opinion of [COMPANY B]. Email correspondence indicates that it was likely to be revisited by [COMPANY B] and the subject does not raise an issue calling for a disciplinary response under r 7 of the Rules or otherwise;

(e) expressions of her personal opinions on the extent of earthquake related damage and the remediation required – this topic features in my preceding discussions and is covered above;

(f) differences between what she made of expert reports compared with what [YWOF] made of them is also a topic that features in my preceding discussions and covered above – there is no independent expert critique of any of those reports;

(g) mention that she found Ms UI’s approach to her case confusing – Ms MO elsewhere makes clear that she has no complaint to make about Ms UI’s day to day management of her case, so that criticism merely identifies an internal inconsistency in Ms MO’s approach and in any event raises no issues of Mr FP’s conduct;

(h) her dwelling at length on her perspective of what was discussed and/or revealed at site meetings with experts does not raise any identifiable conduct issues engaging Mr FP;

(i) complaints that on numerous occasions Ms UI had taken steps in her case without specific instructions to do so – r 13.3 (informed instructions) is to be applied against the context of the circumstances in which it may arise. This was a case where the client was in fact so personally involved in its progression that she was sufficiently aware of what was going on as to render any recourse to that rule unjustified; and

(j) in any event no significant issue affecting Mr FP (such as inadequate supervision) is identified;

(k) complaints in relation to [YWOF]’s fees that much of the work done, and in her belief charged for, had lacked utility are dealt with under the fees heading below;

(l) as to a submission that Ms UI’s treatment of a significant draft letter to EQC was unsatisfactory – leaving aside Ms MO’s disavowal of any complaint about Ms Simonds personally, I have examined the reported and apparent circumstances surrounding this complaint and cannot identify any conduct issues;

(m) writing at length about her dissatisfaction with Mr FP and Ms UI on the approach to invasive testing issues – again Ms MO is asking for her non- expert views to be treated as if they were expert opinion;

(n) asserting that she had been led to pay for reports, particularly such from [Company D] which claims expertise in construction matters, particularly those concerning concrete, that were quite unsatisfactory – again Ms MO

is asking for her non-expert views as to the relevance and competence of those reports be treated as if expert opinion;

(o) complaining that the whole process with [YWOF] had been unnecessarily prolonged and in the end “useless” – a personal opinion not supported by any acceptable and persuasive evidence; and

(p) as to the submission that, although she referred to a range of what she termed specific incidents revealing a “pattern of conduct inconsistent with the professional obligations set out in the Act and the Rules” – no such pattern is discernible.

[61] As to the review grounds, I noted at [28] above that those appeared to come down to central submissions that:

(a) erroneous conclusions by the Committee are indicative of an absence of full consideration of the complaint;

(b) given her amplification of (a) together with matters she discovered after the engagement of other lawyers and upon the subsequent transfer of her claim to [COMPANY A] by EQC, there is demonstrable evidence of a failure by Mr FP properly to discharge his professional duties;

(c) information referred to in her commentary on (c) could not be shared previously because “Mr FP is privy to what I write and EQC had not passed the claim on to [Company A]”.

[62] Part of my task has been to identify, as best as I can in this unusual case, what really lies at its heart and what does not amount to material justifying consideration in the disciplinary context. Matters to which I do not refer at all, or only in passing, are matters I find to be entirely in the latter category.

Fees

[63] The first invoice issued by [YWOF] is dated 28 May 2015. The fee noted is

$1,086.96 plus GST of $163.04 – $1,250 in all. The odd numbers demonstrate that [YWOF] chose to limit its charges up to that point to the amount matching what Ms MO, along with others, had been obliged to pay in respect to the original class action proposal. In short, the fee was capped by [YWOF].

[64] The accompanying narration is obviously merely indicative of the scope of the work to that date – work done for Ms MO personally. But even on its own it demonstrates

that this fee charged, fell well short of what could have been charged if all time recorded had been taken into account.

[65] The later fee, rendered on 20 October 2016, was for $9,000 plus GST. It covered the period from around mid-2015, which is the period particularly focused upon by Ms MO in her complaint.

[66] Time recorded and treated as chargeable during the period in question amounted to $11,670 plus GST.

[67] In complaining about this invoice Ms MO has viewed the narration provided with it as if it reflected a precise resume of what was done during the period in question. Where, in her view, that included work related to (for example) her complaints about the experts, she took exception to being charged for it.

[68] There is no indication that [YWOF] specifically charged her for particular periods or categories of work. Rather it is clear that the approach taken was the correct one – one focusing on the overall picture in terms of r 9 of the Rules.12

[69] Turning then to r 9.113, as referred to in r 9, a consideration of the factors listed there and applied to what the file materials indicate was done, indicates that a fee of

$9,000 overall was reasonable. Ms MO’s fundamental criticism of the account is that

she contends that the work done was of no use to her. For reasons explained, I do not accept that argument.

12 Rule 9: A lawyer must not charge a client more than a fee that is fair and reasonable for the services provided, having regard to the interests of both client and lawyer and having regard also to the factors set out in rule 9.1.

13 9.1 The factors to be taken into account in determining the reasonableness of a fee in respect of any service provided by a lawyer to a client include the following:

(a) the time and labour expended:

(b) the skill, specialised knowledge, and responsibility required to perform the services properly:

(c) the importance of the matter to the client and the results achieved:

(d) the urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by the client:

(e) the degree of risk assumed by the lawyer in undertaking the services, including the amount or value of any property involved:

(f) the complexity of the matter and the difficulty or novelty of the questions involved:

(g) the experience, reputation, and ability of the lawyer:

(h) the possibility that the acceptance of the particular retainer will preclude engagement of the lawyer by other clients:

(i) whether the fee is fixed or conditional (whether in litigation or otherwise): (j) any quote or estimate of fees given by the lawyer:

(k) any fee agreement (including a conditional fee agreement) entered into between the lawyer and client:

(l) the reasonable costs of running a practice:

(m) the fee customarily charged in the market and locality for similar legal services.

[70] Having given careful consideration to the work completed, the time records, and the r 9.1 fee factors, I am persuaded, as was the Committee, that the fees charged were fair and reasonable.

Publication

[71] 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.

Result

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

decision.

Decision

[73] Pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006 the decision of the Standards Committee is confirmed.

_{DATED this 13th day of December 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:

Ms MO as the Applicant

Mr FP as the Respondent

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