XN v VO [2019] NZLCRO 14 (25 February 2019)

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	LCRO 75/2016
CONCERNING	an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING	a determination of the [City] Standards Committee
BETWEEN	XN and WN Applicant
AND	VO _Respondent

[1] Mr and Mrs N have applied for a review of a decision by the [City] Standards Committee (the Committee) to take no further action in respect of their complaint concerning the conduct of Mr VO, a barrister.

VO concerning vehicular access to their respective properties, and related issues.

[3] Around 2005 Mr and Mrs VO purchased a property from Mr and Mrs N (the VO property). Mr and Mrs N owned an adjoining property (the N property). At the time of purchase, vehicular access to both properties was by way of a right-of-way which benefited both properties, and several other neighbouring properties (the main access).

[4] For some years, until they built a house on their property, Mr and Mrs VO used temporary accommodation. In order to provide a suitable house site they had to raise

the level of the building platform on their chosen site, and obtain alternative vehicular access across the N property.

[5] Mr XN indicated he wished to defer any agreement on Mr and Mrs VO’s request for an alternative access until a proposed change to the Council’s District Plan, which would permit subdivision of the N property, came into force.

2011 (the alternative access agreement). Mr and Mrs N agreed to grant to Mr and Mrs VO a right-of-way over part of the N property (the alternative access). This agreement required Mr and Mrs VO, amongst other things, to form (construct) the alternative access at their cost and pay the necessary survey and legal costs to create a right-of-way.

[7] In the early part of 2012, a neighbour (the neighbour) whose property also had a right-of-way over the main access, approached Mr VO and Mr XN about [the neighbour's] intention to subdivide his property. In order to obtain a subdivision consent from the Council, the neighbour had to form (construct) the main access to, at least, Council standards.

[8] In the second half of 2012 the parties had discussions and exchanged communications about contributions towards the cost of forming the main access by constructing a concrete driveway. In November 2012 Mr and Mrs N provided their consent to Mr and Mrs VO’s resource consent application to build a house.

[9] Disagreement as to the scope and terms of the alternative access agreement arose. In particular, whether Mr and Mrs VO had “exclusive use” of the alternative access. Mr and Mrs VO issued District Court proceedings around August 2013. Mr and Mrs N lodged a counterclaim in which they alleged Mr VO had refused to abide by his agreement to contribute towards the cost of construction of the main access, and had caused flooding on the N property by placing unconsented fill on the VO property.

[10] In March 2014, Mr and Mrs VO applied for an interim injunction in the District Court to prevent Mr and Mrs N denying [Mr and Mrs VO] use of the alternative access to construct [Mr and Mrs VO’s] house. The Court granted an interim injunction subject to a number of conditions including the standard and timing of the work required by Mr and Mrs VO to form the accessway.1

[11] Although the parties discontinued their respective claim, and counterclaim other issues concerning the alternative access — formation, installation of lighting, planting of

trees — were disputed. Also disputed was whether an existing storm water easement permitted Mr and Mrs VO to drain sewage.

[12] Mr and Mrs N lodged a complaint with the New Zealand Law Society Complaints Service (NZLS) on 20 November 2015. They requested that Mr VO be censured, and sought reimbursement of legal fees incurred in dealing with the issues described in their complaint.

[13] They claimed that Mr VO, by “correspond[ing]” with them “on his letterhead”,

[14] They claimed that Mr VO’s conduct in his dealings with them was conduct unbecoming. This part of their complaint can be divided into two categories.

[15] First, Mr and Mrs N claimed because they had accepted Mr VO’s “offer” to share the cost of concreting the main access, they had provided their consent to Mr and Mrs VO’s resource consent application required for construction of [Mr and Mrs VO’s] house.

[16] They claimed Mr VO, by subsequently “refus[ing] to honour his agreement” to contribute had obtained their consent by deception.

[17] Four of Mr and Mrs N’s six other complaints concerned the meaning and effect of the alternative access agreement.

(i) Exclusive use, access pending registration of easement — Mr and Mrs VO’s injunction

[18] Mr and Mrs N alleged that in order to gain access to the building site on the VO’s property, Mr VO had wrongly applied for an injunction “to use” the alternative access before the right-of-way easement was registered.

[19] They claimed that contrary to their “request” to consult with them beforehand, and before they had returned from an overseas trip, Mr and Mrs VO commenced “construct[ion] [of] the new easement driveway”. They say this resulted in the height of the formed driveway “above the existing ground level at [the] common boundary” of the N and VO properties being too high by 150 mm.

[20] They claimed Mr VO first, wrongly represented to them that the alternative access agreement conferred on Mr and Mrs VO the right to install lighting on the N property when that agreement did not; and secondly, commenced installation of lighting before he had provided details of the proposed work to Mr and Mrs N as requested by them.

[21] Mr and Mrs VO wanted to plant additional trees on the N property lining the alternative access. Mr and Mrs N claimed Mr VO, having threatened them with mediation, arbitration and associated legal costs, later acknowledged tree planting was not permitted “in terms of the registered easement and planting covenants” relating to the N property.

[22] Mr and Mrs N alleged Mr VO threatened them with injunction proceedings in respect of Mr and Mrs VO’s reliance on an existing stormwater easement to lay a sewage pipe which Mr and Mrs N contended was not permitted by the storm water easement.

[23] Finally, Mr and Mrs N claimed Mr VO made a groundless complaint to the Law Society about legal fees incurred by them with their lawyer concerning “changes to easements” over their property. They said Mr VO, who had agreed to pay “all reasonable survey and legal costs” incurred by them on that matter, subsequently “elected to pay only approx. 50 [per cent]”.

[24] The Committee delivered its decision on 6 April 2016, 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.

(a) by communicating with Mr and Mrs N on his letterhead, Mr VO was acting in his professional capacity, or in his personal capacity; and

(b) in obtaining Mr and Mrs N’s consent to Mr and Mrs VO’s resource consent application, Mr VO acted deceptively, and if so, contravened any professional rules or standards.

[26] The Committee stated that Mr and Mrs N knew Mr VO was a barrister who had instructed his own lawyer to act for him and Mrs VO in the litigation with Mr and Mrs N.

[27] The Committee recognised “Mr VO’s use of his professional letterhead ...could be viewed as a tactic intended to persuade Mr and Mrs N to agree to Mr and Mrs VO’s various demands” and observed “it may be unwise to do so” in such circumstances.

[28] However, the Committee considered “it is likely” Mr and Mrs N were aware Mr VO “was writing in his personal capacity”. In the Committee’s view, it followed that Mr VO’s use of his professional letterhead in his communications with Mr and Mrs N for his “private purposes [did] not breach” any professional rules.

[29] The Committee concluded that there was “insufficient information to determine” this aspect of Mr and Mrs N’s complaint which “would be more appropriately addressed in the Civil Courts”.

[30] In their application for review filed in this Office on 14 April 2016 Mr and Mrs N say the Committee did not consider five aspects of their complaint. They “seek a proper examination and determination” of each aspect, and a finding that Mr VO “acted deceptively”.

[31] Mr and Mrs N say it was “unacceptable” for the Committee to have made the observation that Mr VO’s written communications on his letterhead “could be viewed as a tactic to persuade” Mr and Mrs N “to agree to Mr VO’s various demands” without making a “ruling about this”.

[32] In support of their contention Mr VO’s communications with them were made in his professional capacity they say “[a]ll of [his] correspondence on many issues” with them “was on his personal letterhead” which “emanated from his professional chambers”, was “often sent by his legal secretary and on many occasions contained legal threats and arguments”.

[33] They say this necessitated them seeking “legal help”, as a consequence of which “[f]or a long period Mr VO’s correspondence was ‘lawyer to lawyer’”.

[34] Mr and Mrs N say they “are not seeking anything other than a finding that Mr

VO acted deceptively” in respect of which they say there is “ample information”.

[35] They say it should have been “obvious” to the Committee from “a careful examination” of their complaint that by communicating with them on his letterhead Mr VO reinforced his demands of them.

[37] Mr VO agrees with the Committee that the issues he and Mrs VO have with Mr and Mrs N are civil matters in respect of which the Committee declined jurisdiction.

[38] Mr VO refers to “a very long history of correspondence” between him and Mr and Mrs N in this matter. He says although “most” of the correspondence was on his letterhead, “Mr XN in particular could not have assumed other than” [Mr VO] “was acting on [Mr VO’s] own behalf”.

[39] He says he “had legal advice from a solicitor” and engaged counsel for court appearances. He says Mr and Mrs N had legal representation “from time to time”.

[40] Mr VO explains that at “the heart of Mr and Mrs N’s dissatisfaction” is his and Mrs VO’s “refusal to pay a one third share of concreting” the main access, “used by about six properties”, until there was a “formal agreement” with the adjoining owners concerning “how maintenance costs” would be “shared”.

[41] He refers to particular correspondence from Mr XN to show that the neighbour, and the owner of another property which also had use of the main access, had to concrete the driveway because they “wanted to subdivide their properties”.

[42] He says he and Mrs VO, who were not intending to subdivide, were not subject to that requirement. Therefore, his and Mrs VO’s “offer” to contribute was “generous” because there was “no legal requirement” on them to do so.

[43] He refers to r 11 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the rules), which concerns misleading and deceptive conduct by a lawyer. He submits the rule is confined to conduct “on any aspect of the lawyer’s practice” and therefore does not apply because “[a]ll of this correspondence and these issues were outside [his legal] practice”. For that reason, he says the fact that his written communications were on his letterhead “is neither here nor there”.

[44] Mr VO says apart from his and Mrs VO’s desire that their “position [be] protected by a binding agreement” concerning the construction of the main access, there were “other issues”.

[45] He says one of these issues concerned whether he and Mrs VO had exclusive use of the alternative access which led them to “successfully applying for an interim injunction”. He says both sides subsequently “discontinued their respective claims in the District Court”, and Mr XN “unsuccessfully appl[ied] for costs”.2

[46] For practical reasons, he says he and Mr XN each considered they “had good legal grounds for the claims [each] advanced”, but each “elected not to proceed”.

[47] In conclusion, he says he is “entitled to protect his own interests including engaging in or threatening litigation if necessary”. He says Mr XN “had legal advice, and was not disadvantaged or deceived in any way”.

[48] Mr VO contends Mr XN “resorted to [the] inappropriate process” of laying a complaint against him, as well as “numerous complaints to [the] Council, all of which have been addressed”, instead of “pursu[ing] his claim in the District Court, with the need for proof and valid courses of action”.

[49] The parties have agreed to the review being dealt with on the papers. This review has been undertaken on the papers pursuant to s 206(2) of the Act, which allows a Legal Complaints Review Officer (LCRO) to conduct the review on the basis of all information available if the LCRO considers that the review can be adequately determined in the absence of the parties.

[50] 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.

[51] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:3

... 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.

[52] More recently, the High Court has described a review by this Office in the following way:4

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.

[53] 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 consider all of the available material afresh, including the Committee’s decision, and provide an independent opinion based on those materials.

(a) When representing himself, Mrs VO and their respective family trusts in his communications with Mr and Mrs N, and at times with Mr and Mrs N’s lawyer:

(ii) was he providing regulated services, that is, acting in his professional capacity as a lawyer?

(b) If Mr VO was providing regulated services, namely, acting in his professional capacity as a lawyer, did he breach any professional standards, or contravene any professional rules in those communications and dealings?

[55] The first question on this review is whether Mr VO, in his dealings with Mr and

Mrs N was acting in his personal capacity, or in his professional capacity as a lawyer.

[56] In summary, where it is considered a lawyer’s conduct warrants disciplinary sanction there are two findings that can be made. First, misconduct, the more serious type of conduct, pursuant to s 7 of the Act, and secondly, unsatisfactory conduct pursuant to s 12. Both sections refer to conduct that occurs at a time a lawyer is providing “regulated services”.

[57] The High Court has drawn the distinction between “professional misconduct (not the statutory term)” on the one hand, and “personal misconduct” on the other hand.5 “All conduct must either be in the course of one or the other. There can be no gap or lacuna”.6

[58] Whereas “professional” misconduct, “means conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services”, (s7(1)(a)) “personal” misconduct “includes - conduct which is unconnected with regulated services” (s7(1)(b)(ii)).

[59] The term “regulated services” is comprehensively defined in the Act and refers to “legal services” which in turn is defined as services that a person provides “by carrying out legal work for any other person”.7 “Legal work” includes “the reserved areas of work”, namely, work in connection with proceedings or anticipated proceedings, giving legal advice in other matters, preparing legal documents and matters incidental to the above.8

[60] The circumstances in which a lawyer who is not providing regulated services may still be subject to a misconduct finding under the Act are also described in s 7 as:9

conduct ... which is unconnected with the provision of regulated services by the lawyer ... but which would justify a finding that the lawyer ...is not a fit and proper person or is otherwise unsuited to engage in practice as a lawyer ...

6 A v Canterbury Westland Standards Committee No 2 of the New Zealand Law Society [2015] NZHC 1896 at [57]; and Orlov at [102].

9 Section 7(1)(b)(ii). A misconduct finding can only be made by the New Zealand Lawyers and

[61] Sections 12(a), (b) and (d) refer to conduct which occurs at a time when a lawyer is providing regulated services. Under s 12(c), if a lawyer is not providing regulated services at the relevant time, the lawyer’s conduct may nonetheless constitute unsatisfactory conduct if the lawyer contravenes the Act, or any regulations or practice rules made under the Act.

[62] A common thread to the related definitions concerning “regulated services” is the provision of legal advice to a client. In a decision from this Office, the observation was made that a finding of unsatisfactory conduct “most often arises in connection with the provision of legal services”.10

[63] It follows that the qualification in ss 12(a) and (b) that the conduct of the lawyer concerned must be “conduct ... that occurs at a time when [the lawyer] is providing regulated services”:11

must be construed broadly and consistently with the wider purposes of the legislation to include any conduct which occurs in connection with the practice of law.

[64] In a practical sense, it is therefore “necessary to consider objectively whether a reasonable person in the shoes of the client would consider that he [or she] was obtaining legal services”.12

[65] Mr and Mrs N claim Mr VO, by corresponding with them on his letterhead, was acting as a lawyer. They say, “on many occasions” Mr VO’s written communications “contained legal threats and arguments” which necessitated them having to obtain their own legal advice.

[66] Mr VO disagrees. He says he was acting in a personal capacity having “throughout had independent advice not only from [his] solicitor ...but ... from counsel in the proceedings”, and an associate professor of law “on issues relating to the [alternative access] easement”. He says as “a plaintiff or party to the litigation” he and Mrs VO were

[67] He contends that because the definition of “legal services” in s 6 of the Act “means services that a person provides by carrying out legal work for any other person” (emphasis added), he was not providing “regulated services” because he was acting for himself.

[68] He says he wrote to Mr and Mrs N, and to their lawyer on [Mr VO’s] letterhead because his letterhead contained his “contact details”. He says this “does not mean” he was acting in a professional capacity.

[69] Mr and Mrs N contend Mr VO, in his communications and interactions with Mr N, and with Mr and Mrs N’s lawyer concerning vehicular access to their respective properties, and related matters was acting in his professional capacity as a lawyer.

[70] Whilst Mr VO submits he was acting for himself, it is evident from the written communications exchanged between Mr VO and Mr N, and between Mr VO and Mr and Mrs N’s lawyer that he was representing both his and Mrs VO’s family interests.

[71] Throughout his written communications Mr VO put forward his and Mrs VO’s position on property related matters. Referring to a few examples, Mr VO informed Mr N that “we are only looking to contribute if we can see some marked improvement in the driveway”; “although we have no liability at all to contribute to the driveway upgrade we have been always willing to do so”; “our response to your change of heart”; “our claim” and so on.13

[72] By corresponding on his or her firm’s letterhead or notepaper on a personal matter, the lawyer concerned runs that risk that he or she may be perceived, to a greater or lesser degree, to be acting as a lawyer, and may be held to be acting as a lawyer.

[73] Acknowledging these risks, the Law Society has cautioned lawyers “not to blur the line between acting in a personal vs professional capacity, such as by using the firm letterhead”.14 This was explained by a Standards Committee which sounded a warning that lawyers who:15

included practice details in a private email ran the risk that a member of the public would be misled about the capacity in which the lawyer was communicating and [the lawyer’s] intentions... Practitioners should therefore consider the tone and

14 Lisette Solis “Complaints Against Lawyers Over Estate Administration” (2017) LawTalk 905 38 at 40. See discussions on this subject in EA v ABO LCRO 237/2010 (29 September 2011) at [38] and [40]; AB v AC LCRO 1/2017 (26 January 2018) at [39]–[47].

15 New Zealand Law Society “Risk of signing correspondence as a “lawyer”” (22 December 2017)

content of such correspondence, together with the way in which they hold themselves out when sending [the correspondence].

[74] Mr VO assumed that risk by corresponding on his letterhead. However, it does not automatically follow that because he did so he was acting in a professional capacity as a lawyer. As noted earlier, whether a lawyer is providing regulated services (or the lawyer’s conduct is connected to the lawyer’s provision of regulated services), or the lawyer is acting in a personal capacity, must be considered objectively.

[75] As noted earlier, the definition of “legal work” includes “(a) the reserved areas of work” which concerns proceedings or anticipated proceedings, “(b) advice in relation to any legal or equitable rights or obligations”, “(c) the preparation or review of any document” concerning that advice, “(d) mediation, conciliation or arbitration services”, and “(e) any work that is incidental” to the work described in the previous paragraphs.

[76] Mr VO acknowledged to the Committee that “it is fortunate that [he] is legally qualified and so [had] been able to steer [himself and Mrs VO] through what has been a very difficult process with difficult neighbours”.

[77] The nature of the communications and interactions between Mr VO and Mr N concerned a range of property related issues including rights-of-way, contract (formation of the main access, the alternative access agreement), construction, and subdivision issues.

[78] Mr VO contends that in his dealings with Mr N, and with Mr and Mrs N’s lawyer, he was acting for himself. For the following reasons, I consider Mr VO was also representing his and Mrs VO’s respective family trusts in this matter, albeit trusts in which Mr VO may have had a beneficial interest.

[79] Although Mr and Mrs VO are described as plaintiffs in the documents produced concerning their interim injunction proceedings in March 2014, Mr VO states in his

27 August 2013 will say statement that the owners of the VO property were the trustees of their respective family trusts.

[80] This is also evidenced in the June 2011 alternative access agreement where the trustees, Mr VO, Mrs VO and an independent trustee, are described as the owners, and are all signatories to that agreement.

[81] The trustees are also shown as plaintiff on the documents produced concerning the August 2013 proceedings, namely, Mr and Mrs VO’s respective will say statements, and Mr VO’s supplementary will say statement.

[82] This leads to consideration of whether Mr VO, in his dealings with Mr and Mrs N, breached any professional standards, or contravened any professional rules.

[83] As noted earlier, Mr and Mrs N claim that Mr VO’s conduct, in seven respects,

[84] I have assumed that the Committee, having found that Mr VO was not acting in a professional capacity, decided it was not necessary to consider Mr and Mrs N’s specific complaints.

[85] Although it is open to me to return those matters to the Committee, it is more than three years since Mr and Mrs N made their complaint. One of the purposes of the complaints and disciplinary framework established by the Act is that complaints “be heard and determined expeditiously”. For that reason, rather than have the parties wait further for an outcome I have decided to consider those matters on review.16

[86] It follows that the second question is whether any of Mr VO’s conduct in his dealings with Mr and Mrs N, and Mr and Mrs N’s lawyer gave rise to any disciplinary issues. For my reasons which follow, I consider the answer to that question is no.

[87] Mr and Mrs N claim Mr VO deceived them into providing their consent to his and Mrs VO’s resource consent application in respect of [Mr and Mrs VO’s] proposed house. They say this was conduct unbecoming by Mr VO.

[88] Conduct unbecoming is included in the meaning of unsatisfactory conduct in s 12(b), referred to earlier. The of the lawyer complained about must have occurred at a time when the lawyer was providing “regulated services”:17

and is conduct that would be regarded by lawyers of good standing as being unacceptable, including - (i) conduct unbecoming a lawyer or an incorporated law firm; or (ii) unprofessional conduct; or’...

[89] Conduct unbecoming has been described as “more than a mere error or negligence”. For that reason, conduct unbecoming “might be thought to be more serious

17 Section 6 — and related definitions of “legal services”, “legal work”, “reserved areas of work”.

than unsatisfactory conduct” under s 12(a), yet not so serious as to constitute misconduct.18

[90] The observation has also been made that “an element of wrongdoing will need to exist” albeit less than required for “serious misconduct”, and ought to “be set apart as an unacceptable professional breach”.19

[91] Whether a lawyer’s conduct constitutes conduct unbecoming will be measured against the test in s 12(b) whether the conduct “would be regarded by lawyers of good standing as being unacceptable”.

[92] As noted, Mr VO refers to r 11.1 which he submits does not apply in these circumstances.20 That rule “concerns matters such as the lawyer’s practising certificate status, expertise in particular areas of the law, the existence of an association, affiliation or endorsement, or fee charging practices”.21 The rule is not “directed at misleading and deceptive conduct in the lawyers advocacy work”.22

[93] This Office has observed that r 11.1, which “reflect[s] the formulation found in the Fair Trading Act 1986”, is intended “to ensure that the lawyer, in operating his or her business, does not mislead clients or prospective clients as to the nature of his or her business”.23

[94] As noted earlier, Mr and Mrs N claim that having received and accepted Mr VO’s “offer” to share the cost of concreting the main access, they consented to Mr and Mrs VO’s resource consent application in respect of [Mr and Mrs VO’s] proposed house. They claim Mr VO’s subsequent refusal “to honour his agreement” is evidence of him having obtained their consent by deception.

18 Section 12(a) — conduct that does not meet “the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer”. See Duncan Webb, Kathryn Dalziel and Kerry Cook, Ethics, Professional Responsibility and the Lawyer (3rd ed, LexisNexis, Wellington, 2016) at [4.3.2].

20 The footnote to the rule explains that the words “misleading or deceptive” are “identical to those used in the Fair Trading Act 1986 and lawyers are referred to texts and authorities on that legislation for further guidance”.

21 Matthew Palmer (ed) Professional Responsibility in New Zealand (online looseleaf ed, LexisNexis) at [410,505.5].

[95] In response, Mr VO says Mr and Mrs N, and the neighbour were considering subdivision of their respective properties. A likely Council condition of subdivision consent was that they would be required to form the main access.

[96] He acknowledges he and Mrs VO “offered to pay a third” of concreting “the shared driveway”. However, he says Mr XN “omits to mention” that [Mr VO’s] “fundamental requirement throughout” was that “there be a written contract, that the other neighbours also contribute and that [the VOs’] own requirements” concerning construction “were met”.

[97] He says, “instead of addressing those concerns” Mr XN and the neighbour carried out the work “without [Mr and Mrs VO’s] knowledge or approval and without ever formulating the kind of agreement ... required” by Mr and Mrs VO.

[98] He refers to Mr and Mrs N’s counterclaim on this issue in response to his and Mrs VO’s proceedings concerning their claim to “exclusive use” of the alternative access. As noted above, he submits, r 11.1 is confined to a lawyer’s conduct in respect of “the lawyer’s practice”, and does not apply to this aspect of Mr and Mrs N’s complaint.

[99] Mr XN refers to having met with Mr VO and the neighbour “to discuss requirements for concreting the driveway”, and “to upgrade the existing metal driveway”. He claims they “agreed verbally” that each of them “would share the cost equally”. He says in November 2011 Mr VO engaged engineers “to prepare drawings and to gain Council approval” for that work “to serve all 3 properties as well as a further small lot which ... did not have subdivision rights”.

[100] Mr XN says he and Mrs WN provided their consent to Mr and Mrs VO’s resource consent application first, “on the understanding and expectation that Mr VO would honour” the “deal” [Mr VO] offered, and secondly, “partly to assist [their] neighbours ... obtain payment” from Mr and Mrs VO of one third of the construction cost “already concreted” because the neighbour “had to make full payment to the contractor”.

[101] He complains Mr VO did not subsequently attempt to “reach a compromise on the peripheral matters [Mr VO] undertook to attend to” in Mr VO’s 5 November 2012 letter.

[102] I note, however, that in June 2012, Mr VO had informed Mr XN and the neighbour that [Mr VO and Mrs VO] “would contribute if [they] can see some marked improvement in the driveway ...that will add value to the properties”. He set out his

preference for an “exposed aggregate surface”, and referred to the cost of the work,

[103] Two months later Mr VO restated that he and Mrs VO had “no liability at all to contribute to the driveway upgrade”, but they had “always been willing to do so provided [they] could agree upon the terms and conditions”. He explained the matters he wanted agreed as a precondition to his and Mrs VO’s agreement to contribute.

[104] This issue appears to have been drawn in by Mr VO to his and Mrs VO’s request for a boundary adjustment on the “northern part of [their] property”. Mr VO informed Mr XN that if “agreement on the boundary” is reached “then we will have a deal on the fill, and we will have a deal on the driveway”.

[105] However, Mr VO stated that the “main issue” for him and Mrs VO was whether he could persuade the neighbour to “bear a one third share” of the cost of construction, and another user “to pay a one ninth share”. Mr VO also asked Mr XN for a concession on tree planting. In conclusion, he stated “all these issues require compromise”, and he would not insist on an aggregate surface to the driveway if he could “see progress on the wider issues”.

[106] Mr VO acknowledges there “was discussion ...about the driveway”. He says he “still thought it might be possible to reach an agreement” but his “attempts to get any concessions from Mr XN and [the neighbour] about [Mr and Mrs VO’s] planting requirements were rebuffed". He says these matters were the subject of Mr and Mrs N’s counterclaims which they discontinued.

[107] Mr XN does not say exactly when he and Mrs WN provided their consent, but it appears they did so soon after having received Mr VO’s 5 November 2012 letter in which Mr VO stated that he did not regard the contribution issue to have been agreed.

[108] As already noted, this matter was the subject of Mr and Mrs N’s counterclaim to Mr and Mrs VO’s claim to “exclusive use” of the alternative access. I make the observation that had Mr and Mrs N wished to have this matter determined then the time to do so would have been when those proceedings were before the Court. However, the parties discontinued their respective claim, and counterclaim.

[109] This was a contractual dispute. For that reason, neither a Standards Committee nor this Office on review has jurisdiction to consider this aspect of Mr and Mrs N’s complaint.24

[110] Mr VO did not owe Mr and Mrs N the professional duties that a lawyer owes his or her clients. I accept Mr VO’s submission that r 11.1 did not apply in these circumstances. From my consideration of the communications between the parties on this issue there is no evidence that Mr VO conducted himself in a way that could be described as conduct unbecoming.

(b) Alternative access — exclusive use, formation, lighting, planting issues

[111] Four of Mr and Mrs N’s other complaints concern the alternative access. In particular, Mr and Mrs VO’s claim to exclusive use, formation (construction) of the alternative access, the installation of lighting, and planting trees as requested by Mr and Mrs VO.

[112] As noted earlier, Mr and Mrs VO’s proceedings concerning the exclusive use issue were ultimately discontinued. Although Mr VO threatened proceedings in respect of the lighting, and planting issues those, and the formation issue were resolved.

[113] Mr and Mrs N claim, in effect, that by issuing, and threatening proceedings Mr VO used legal processes for other than proper purposes in order to gain what he and Mrs VO wanted for their property.

A lawyer must use legal processes only for proper purposes. A lawyer must not use or knowingly assist in using, the law or legal processes for the purpose of causing unnecessary embarrassment, distress, or inconvenience to another person’s reputation, interests or occupation.

[115] A helpful description of the rationale for this rule is that "public interest in the due administration of justice necessarily extends to ensuring that the court's processes do not lend themselves to oppression and injustice".25

[116] Explanations of the application of rule include that it “constrains lawyers to use legal processes more broadly only for proper purposes”.26 Also, that:27

If a lawyer uses the law for a purpose which is quite contrary to that for which it was intended, the lawyer will be guilty of using the law for an improper purpose.

25 GE Dal Pont Lawyers' Professional Responsibility (6th Edition, Thomson Reuters, Sydney,

When it is clear the action taken is not intended to affect any legal rights, but to achieve some collateral purpose the action is inappropriate and an abuse of legal process.

[117] In this context, the likely meaning of the word “proper” means “genuine”, “conforming to recognised social standards or etiquette, seemly, decent, decorus”, “respectable, correct, [especially] excessively so”.28

[118] The rule contemplates the possibility of more than one purpose. In such circumstances, it has been observed that “[i]f there was a second purpose and this was the predominant purpose then, if such purpose was improper, there would be a breach of Rule 2.3”.29

[119] It follows that “where the predominant purpose is improper, rule 2.3 is breached. That reasoning must apply equally to the situation where there is only one purpose, and that is improper”.30 The footnote to the rule provides “[e]xamples of the breaches [that] the rule might include”.

[120] Circumstances in which the lawyer concerned was held to have contravened the rule include where a lawyer’s “unwarranted threats” of contempt proceedings against another law firm “which would not in any way further [the] position” of the lawyer’s client.31

[121] In the context of lodging a caveat for a client, one of the examples listed in the footnote to the rule states:32

the purpose of the rule is to ensure that persons with a legitimate interest in the property do not have those rights or interests interfered with. A lawyer has the responsibility not to assist persons who wish to do so.

[122] The dispute whether Mr and Mrs VO had exclusive use to the alternative access led to Mr and Mrs VO first, initiating proceedings around August 2013, and secondly, in March 2014 bringing interim injunction proceedings against Mr and Mrs N to prevent them from denying Mr and Mrs VO use of the alternative access to build their new house.

28 Oxford English Dictionary <www.oed.com>. Conversely, "improper" means "[u]nbecoming, unseemly, indecorous".

31 GZ v TE LCRO 17/2011 (17 February 2012) at [79]. The other circumstances listed in the footnote concern making a statutory demand, and service of documents.

[123] Mr VO maintains he and Mrs VO “are entitled like any person to disagree with Mr XN, to challenge his arguments, and to be heard in Court”. In support, he points to the “exclusive use” issue, and Mr and Mrs N’s counterclaim in respect of the contribution towards the existing driveway which “have already been before the Court”.

[124] At the hearing held in the District Court on [Date] 2014, Judge Hinton held there

was “a serious issue to be tried” in respect of Mr and Mrs VO’s “exclusive use” claim.

[125] One week later on [Date] 2014 His Honour granted the interim injunction sought by them on the condition, amongst others, that they construct the driveway to Council standards within a specified timeframe. Leave was reserved for either party to apply to vary the terms of the order.

[126] The parties were each represented by independent lawyers in these proceedings. Subsequently, Mr and Mrs VO discontinued their claim. Mr and Mrs N discontinued their counterclaim.

[127] In such circumstances where the Court held there was a serious issue to be tried, granted Mr and Mrs VO the interim injunction they sought, and the parties subsequently discontinued their respective claim and counterclaim, it is difficult to see how a conduct finding could be made against Mr VO.

[128] In my view, from the information produced to this Office no conduct issues of a disciplinary nature are evident for Mr VO on this aspect of Mr and Mrs N’s complaint.

[129] Mr and Mrs N’s complaints about Mr VO’s conduct in respect of these issues are set out earlier.

[130] Concerning the formation issue, Mr VO says he and Mrs VO “had no legal obligation” to delay the work which he says was approved by Mr and Mrs N’s engineer and the Council engineer before construction began. He denies the work caused damage and ponding problems for Mr and Mrs N, but to “avoid acrimony” they provided topsoil “to level out” Mr and Mrs N’s property.

[131] He says the lighting was “to everyone’s advantage”. He described this complaint as “trivial”. However, he says “rather than litigate” he and Mrs VO “did not press the issue” through arbitration. He says they “gave way and paid the legal costs involved”.

[132] Concerning his and Mrs VO’s tree planting request, Mr VO says they wanted to plant trees “at the end of the easement to finish off the hedge as designed by [their] landscape architect”. He says although he could not understand Mr and Mrs N’s objection “once again” he and Mrs VO “gave in”.

[133] Each of these three complaints similarly concern contractual matters about the meaning and effect of the alternative access agreement. As such, they are not matters in respect of which a Standards Committee, or this Office has jurisdiction to consider.

[134] In my view Mr VO’s conduct on this matter as disclosed in the communications exchanged between Mr VO and Mr XN does not give rise to any disciplinary issues for him.

[135] Concerning Mr and Mrs N’s complaint that Mr VO threatened them with injunction proceedings, Mr VO says he obtained “an oral opinion” from an associate professor of law that the existing storm water easement did confer on the VO property the right to drain sewage. He says this added further support to the advice he obtained from his lawyer, and counsel.

[136] He says although confident in his position, rather than have the matter determined in Court he and Mrs VO opted “to obtain a public [sewer] line”.

[137] This complaint, which concerns the meaning and effect of an existing storm water easement, is not a matter within the jurisdiction of a Standards Committee, or this Office to consider.33

33 The storm water easement was not produced to the Committee, or to this Office.

[138] From the information produced I am unable to discern any aspect of Mr VO’s

conduct on this issue in respect of which a conduct finding could be made against him.

Any person who is chargeable with a bill of costs, ... may complain to the appropriate complaints service about the amount of any bill of costs rendered by a [lawyer]

[140] Mr and Mrs N claimed that Mr VO made a “groundless complaint” to the Law Society about their lawyer’s legal fees in respect of the alternative access agreement. In particular, concerning “changes to easements” over their property. They claimed Mr VO “elected to pay only approx. 50 [per cent]” of their lawyer’s fees.

[141] Mr VO says he “queried certain aspects” of those fees which he considered were outside “the terms” of the alternative access agreement. He says he made a complaint about those fees because “rather than respond”, Mr XN issued proceedings in the Disputes Tribunal. He says Mr and Mrs N's lawyer declined to produce Mr and Mrs N’s file without their consent.

[142] He says having been informed by the Law Society that his complaint “could be resolved in the Disputes Tribunal”, and Mr XN having produced a copy of the file, he expected to “resolve” the matters “without the need for a hearing”.

[143] In the absence of either Mr and Mrs N, or Mr VO having produced the relevant invoice(s) issued by Mr and Mrs N’s lawyer I have proceeded on the assumption that Mr VO did receive an invoice(s) from Mr and Mrs N’s lawyer addressed to him as a “person who is chargeable with a bill of costs”.

[144] This is consistent with Mr VO’s comment to the Lawyers Complaints Service that he took legal advice, and “the precautionary approach of speaking to the Law Society” before making his complaint.

[145] Mr VO was entitled to raise any concerns, and if considered necessary, lay a complaint about the invoice(s).34 It is my view that this aspect of Mr and Mrs N’s complaint similarly does not give rise to any issues of a disciplinary nature for Mr VO.

[147] In reaching that decision I make the observation that the complaints process is not an alternative to court proceedings. Section 138(1)(f) of the Act provides that a Standards Committee may, in its discretion, decide to take no action, or as the case may require no further action, on any complaint if, in the opinion of the Committee there is in all the circumstances an adequate remedy that it would be reasonable for the person aggrieved to exercise.35

[148] 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 excluding anything as might lead to their identification.

In accordance with s 213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:

35 Section 211(1)(b) — the powers of Standards Committees “in the proceedings” are conferred

New Zealand Legal Complaints Review Officer

XN v VO [2019] NZLCRO 14 (25 February 2019)