Lukas v BW [2019] NZLCRO 141 (29 November 2019)

Last Updated: 24 June 2020

LCRO 39/2019

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 [X]

BETWEEN YURI LUKAS

_Applicant

AND BW and CV

_Respondents

The names and identifying details of all but the applicant in this decision have been changed.

Introduction

[1] Mr Lukas has applied for a review of the determination by [City] Standards

Committee [X] which made three findings of unsatisfactory conduct against him.

[2] An applicant only hearing was initially scheduled but adjourned following an application by Mr Lukas. The hearing was rescheduled and again adjourned following another application by Mr Lukas.

[3] This review has now been completed on the papers and to ensure there is a full record of the reasons for this, a copy of the Minute issued on 30 October 2019 is attached to this decision.

Background

[4] Mr BW entered New Zealand on 27 November 2013 on a visitor visa. The visa was valid until 9 January 2014. Mr BW sought assistance from an immigration

consultancy to have his visa extended but this was unsuccessful.1 It was about this time that Mr BW made contact with Mr Lukas.2

[5] Mr Lukas made several s 613 applications for Mr BW, all of which were declined.4 In a letter dated 13 May 2014 addressed to Mr BW but sent to Mr Lukas, Immigration New Zealand (INZ) advised:

As your visa has expired you are now unlawfully in New Zealand and must leave New Zealand immediately. If you do not leave New Zealand voluntarily you will be liable for deportation.

[6] In the preceding paragraph the letter said:

Under the Immigration Act 2009, people whose visas have expired have no legal right to apply for another visa. Requests for the grant of a visa under section 61 do not have to be considered.

[7] In July 2014 Mr Lukas complained to the Ombudsman about INZ’s refusal to consider Mr BW’s request for a visitor visa. In response, the Ombudsman made the same comment, namely that persons who are in New Zealand unlawfully have no right to apply for a further visa, and upheld the decision of INZ.5

[8] Mr BW formed a relationship with Dr CV in June 2016, who says in the letter of complaint that:

Towards the end of 2016, I began to have some misgivings about BW’s ability to secure a visa, given the number that had been lodged by Mr Lucas [sic] and given the scarcity of the information coming from Mr Lucas about those visas and appeals.

[9] In April 2017 Mr BW was notified by INZ to leave New Zealand. Dr CV says this came as a shock to both of them as Mr Lukas had not “indicated anything was amiss”.6

[10] Mr BW and Dr CV left New Zealand in May 2017 with the intention of travelling to [country] for a holiday, having provided everything to Mr Lukas to enable an application for residency for Mr BW to be made on the basis of his relationship with Dr CV.

1 Mr Lukas describes Mr BW as being ‘scammed’ by the consultancy but the detail of what

occurred is not relevant to this review.

2 In an email to the instructing solicitor (Mr [FS of AB]), 20 October 2017 Mr BW said: “Mr Lukas

my lawyer for more than three year ...”.

3 Immigration Act 2009, s 61.

4 Section 61 of the Immigration Act 2009 enables the Minister of Immigration to grant a visa on a discretionary basis.

5 There does seem to be a considerable amount of work carried out here without any chance of success, but that is not part of Mr BW’s current complaint.

6 Complaint (23 February 2018).

[11] On 8 June 2017, Dr CV sent an email to Mr Lukas on behalf of Mr BW, inquiring if the application had been lodged. On the following day, they received an email from Mr Lukas’ instructing solicitor (Mr [FS of AB]) with terms of engagement. The email requested a retainer of $3,500 and advised that “legal work by Yuri Lukas will commence upon receipt of payment”.

[12] This came as something of a surprise to Mr BW as Mr Lukas had not explained to them the need for an instructing solicitor or that payment on account of his fee would be required. Mr BW signed the terms of engagement and returned it to [AB].

[13] Paragraph 6 of the terms of engagement reads:

Where HN7 or Yuri requests funds be placed in Our trust account as a retainer for his services, paying those funds into Our trust account constitutes your irrevocable authority for us to pay HN’s invoices for professional services and any filing fees and disbursements from those funds, and also for us to pay our minor administration fee set out below. HN may choose to engage the services of some other barrister or expert to assist in your case, and where he does the retainer may be applied to cover that person’s fees as well.

[14] Mr BW terminated Mr Lukas’ instructions in January 2018 after seemingly little

progress had been made in processing his application for residency.

The complaints

[15] The complaints against Mr Lukas were prepared by Dr CV and lodged on

23 February 2018. Mr BW was in [country] but signed an electronic version of the complaint form. The complaints were therefore accepted by the Lawyers Complaints Service as being made by both Dr CV and Mr BW.

[16] The background details in the previous section of this decision record the events leading to the engagement of Mr Lukas to assist Mr BW to obtain a visa to enter and remain in New Zealand.

[17] Dr CV says:8

This complaint is directly related to Mr Lukas’ unprofessionalism, unethical behaviour, breach of contract, failure to deliver on services and overall harm, anger and distress he has caused my partner and I. We have tried many times to have conversations with Mr Lukas, have emailed him or called and received no response, or a response that says I am sorry, I have been busy and I will do this (or that) or send you information, (or I am out of the country) or internet connection is not good, I have been sick – many excuses, but no action. I have many emails to that effect.

7 HN is Mr Lukas’ employer.

8 Complaint (23 February 2018).

[18] She also refers to the express prohibition by Mr Lukas against their making contact with INZ as a result of which they had to rely solely on Mr Lukas for information, which, when not forthcoming, added to their distress.

[19] Dr CV estimates that Mr Lukas had not responded to their requests for information 90 per cent of the time.

[20] The remaining content of the complaints are made clear in the subsequent sections of this decision.

The Standards Committee determination

[21] The Committee identified six issues to be addressed:9

a. Whether Mr Lukas failed to adequately check Mr BW’s residency visa application before he submitted it to Immigration New Zealand (INZ) in June 2017, meaning it was returned ‘failed lodgement’ and needed to be resubmitted in August 2017, resulting in a two month delay;

b. Whether Mr Lukas failed to inform Mr BW that the residency visa application he had submitted to INZ in June 2017 had been returned

‘failed lodgement’ and needed to be resubmitted in August 2017;

c. The adequacy of the initial engagement process in April 2017 when Mr Lukas met with Mr BW and Dr CV, including whether Mr Lukas failed to adequately inform Mr BW of the work that he would be undertaking; and the basis on which fees would be charged, including an estimate of the likely costs and that he would insist on trust funds being deposited with his instructing solicitor before doing further substantive work;

d. Whether Mr Lukas failed to adequately inform Mr BW about the significance of his unlawful status in New Zealand and the entirely discretionary nature of INZ’s decisions in response to his section 61 requests for a visa;

e. That in an email sent to Mr BW and Dr CV on 24 July 2017 Mr Lukas advised Mr BW and Dr CV to not contact INZ “as this is breach of TOE” when the terms of engagement make no mention of this requirement;

f. Whether Mr Lukas failed to provide Mr BW with an adequate invoice for his services and a breakdown of the work undertaken.

[22] It considered the first three issues “... collectively as, in its view, they related to the overall manner in which Mr Lukas managed the relationship with Mr BW and

_{Dr CV and the way in which he carried out the work”.}10

9 Standards Committee determination,18 February 2019 at [8].

10 At [9].

[23] “Ultimately the Committee’s view was that the engagement process was

flawed and that, as a result, various problems developed from that point onwards”.11

[24] It determined that at the initial meeting the terms of engagement should have been discussed. The Committee said:12

Mr Lukas should have explained to Mr BW and Dr CV what work would be involved in the residency application, who would be doing it, and what timeframes they were looking at. Mr Lukas should have provided an estimate of the likely costs and explained when payment would be required. He should have explained that, as a barrister, he would need to have an instructing solicitor and how that process worked. Ideally, that meeting would have been followed up with a letter setting out what had been discussed and the next steps.

[25] The Committee could not find any evidence that this was done and that it was “wholly unsatisfactory that the actual terms of engagement were not provided to Mr BW until 9 June 2017”,13 being two months after the initial meeting with Mr Lukas.

[26] The application for residency was initially rejected by INZ leading to delays and uncertainties. The Committee noted that it is not unusual for a visa application to be returned as failing the lodgement criteria but that Mr Lukas should have checked the application before it was lodged. It could find nothing to indicate that Mr Lukas had done this.

[27] The Committee was concerned that the events which unfolded were not discussed with Dr CV and/or Mr BW. It could not see any “evidence to support Mr Lukas’ assertion that there was regular communication”,14 and considered that in fact the opposite appeared to be the case.

[28] The Committee concluded:15

In summary, the initial engagement process appears to have been seriously lacking.

[29] It considered that if terms of engagement had been provided and discussed in depth, many of the matters giving rise to the complaints would not have occurred.

_{[30] The Committee continued:}16

11 At [21].

12 At [22].

13 At [23].

14 At [25].

15 At [26].

16 At [27] and [28]. I note the Committee’s determination erroneously reverts the numbering of paragraph [28] onwards to start from [26] again.

[27] In the Committee’s view the poor communication that occurred initially then continued on throughout the term of the retainer. Mr Lukas failed to keep Mr BW and Dr CV updated about what was happening with their case, in particular, the delays caused by INZ needing further information. The Committee was left with the impression that Mr Lukas’ approach to client care and file management is particularly laissez-faire.

[28] The Standards Committee considered that, taken together, Mr Lukas’ failings in relation to these three issues demonstrated an overall lack of care and represented conduct that falls short of the competence and diligence that Mr BW and Dr CV were entitled to expect of a reasonably competent lawyer.

[31] The Committee determined this amounted to unsatisfactory conduct by

Mr Lukas in terms of s 12(a) of the Lawyers and Conveyancers Act 2006 (the Act).

Failing to inform Mr BW of his unlawful status and the discretionary nature of s 61 applications

[32] The Committee determined to take no further action on this aspect of the complaints, whilst noting that “... ensuring a client is aware of their immigration status, and the consequences of that status, is a fundamental matter for an immigration lawyer”.17

[33] It was unsure that Mr Lukas had done enough to inform Mr BW about his unlawful status but on the whole did not consider the evidence supported an adverse finding against Mr Lukas.

Breach of terms and conditions

[34] Mr Lukas advised Dr CV that she had breached the terms of engagement.18

[35] The Committee said:19

41. In the Standards Committee’s view, Mr Lukas handled this situation poorly. There is no mention in the terms of engagement about Mr BW and Dr CV not contacting INZ. It was unacceptable to claim that it was and left them feeling afraid to contact INZ when it was their right to do so. Again, this situation seems to have occurred because the overall communication from Mr Lukas to Mr BW and Dr CV was lacking.

[36] The Committee determined this amounted to unsatisfactory conduct by virtue of s 12(b) of the Act.

17 At [33].

18 It is unclear which terms of engagement Mr Lukas refers to – this is discussed further in the review section of this decision.

19 At [41].

Invoicing

[37] Dr CV complained that they had not received any information from Mr Lukas about his costs. The Committee noted that Mr Lukas said he “provided a detailed invoice for the work undertaken to Mr BW directly”.20

[38] The narration on Mr Lukas’ invoice read:21

Permanent Residency Application for Person With Unlawful History in New

Zealand.

[39] The Committee determined this did not satisfy r 9.6 of the Conduct and Client

Care Rules which provides:22

A lawyer must render a final account to the client or person charged within a reasonable time of concluding a matter or the retainer being otherwise terminated. The lawyer must provide with the account sufficient information to identify the matter, the period to which it relates, and the work undertaken.

[40] Accordingly, the Committee determined that Mr Lukas’ conduct in this regard amounted to unsatisfactory conduct in terms of s 12(c) of the Act by virtue of the breach of r 9.6.

Orders

[41] Having made three findings of unsatisfactory conduct against Mr Lukas the

Committee ordered Mr Lukas to:23

a. ... reduce his fee by 50% and, ..., refund to Mr BW the amount of

$1,442.50 (being 50% of the total amount charged including GST).

b. ... pay to the New Zealand Law Society a fine in the amount of $1,000.

100. ... pay to the New Zealand Law Society costs and expenses incidental to the inquiry and the hearing on the papers, in the amount of $500.
     

Application for review

[42] Mr Lukas has applied for a review of the Committee’s determination. In extensive submissions he makes repeated allegations against, and about, Mr BW and Dr CV which are not referred to in this decision as the complaint and now this application for review, concern Mr Lukas’ conduct. The conduct of his client and Dr CV

_{have minimal (if any) relevance to the performance by Mr Lukas of his professional}

20 At [44].

21 HN, invoice (12 July 2017).

22 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.

23 At [50].

obligations. (By way of example only, attached to this decision is a “list of evidence provided by Mr Lukas” from which the nature of the submissions made by Mr Lukas is apparent).

[43] Mr Lukas seeks reversal of “all orders made by the Committee”.24 That necessarily includes a reversal of the findings of unsatisfactory conduct. He requests this Office to make a decision “based on facts, not the complaint itself”.25

[44] Mr Lukas then recounts the history of instructions received from Mr BW and says that it was he who was Mr Lukas’ client, not Dr CV. He says that Mr BW did not provide any authority for him to communicate with her. He also asserts that he communicated with Mr BW by telephone and skype as well as by email and that the Committee did not take these communications into account.

[45] Mr Lukas relies heavily on his view that he was not permitted to communicate with Dr CV for reasons of privacy. He says that Dr CV was not applying for a visa as “New Zealand citizens do not need permanent residents visas to stay in New Zealand”.26

[46] He says that Mr BW and Dr CV “have a history of providing misleading and false information to New Zealand immigration, NZLS and LCRO”27 and refers to the assertion that Mr BW was unaware of his illegal status in New Zealand (which was not accepted by the Committee) to support a general dismissal of all statements made by them.

[47] Mr Lukas considers that “[City] SC [X] did a very poor job to investigate the

materials provided”.

[48] He then outlines the process he used (and now uses) when instructed by clients:28

[49] Mr Lukas says:29

I understand that [City] SC [X] only checked terms of engagement from one of my instructing solicitor AB. I had different instructing solicitor during our meeting with Mrs CV and Mr BW was provided terms from the previous instructing solicitor. This was the reason why they received the terms from AB after the meeting (I simply ask AB to provide the new terms as they become an instructing solicitor on the case). I was not able to do anything until Mr BW

24 Application for review.

25 Mr Lukas, supporting reasons for review.

26 Mr Lukas, additional submissions for LCRO (24 May 2019).

27 Mr Lukas, supporting reasons for review .

28 This detail has no specific reference to his dealings with Mr BW.

29 Mr Lukas, supporting reasons for review at p 3.

accepted my new instructing solicitors terms of engagement. I understand that Mr BW received several of my terms of engagement and never asked any questions reading this whatsoever. The first version of my terms of engagement had been provided to him in 2014. I am attaching the terms from

2014, 2015, 2016, 2017.

[50] He also submits that [AB] would have obtained Mr BW’s consent for the payment of his fee before making payment to Mr Lukas.

[51] He asserts that Mr BW specifically instructed him to lodge the application for residency as prepared by them and with the birth certificate provided on the basis that it was a full certificate.

Scope of review

[52] The nature and scope of a review has been discussed by the High Court, which said of the process of review under the Act:30

... 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.

[53] More recently, the High Court has described a review by this Office in the following way:31

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.

[54] I have kept these comments in mind when conducting this review and they are particularly relevant with regard to the additional finding of unsatisfactory conduct against Mr Lukas.

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

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

Review

[55] Mr Lukas has filed voluminous amounts of material in support of his review application. It would be expected that Mr Lukas would provide reasons why he disagrees with the findings of the Committee, and identify the material provided in support of his reasons.

[56] That has not occurred, and has made this review somewhat difficult to complete.

The engagement process / the work undertaken / reporting

[57] The Standards Committee dealt with these issues together and determined there had been unsatisfactory conduct in this regard by Mr Lukas.

[58] Mr BW had engaged with Mr Lukas from some time in 2014. His complaints relate to the work carried out (or not carried out) for him in 2017, in respect of which the terms of engagement provided by Mr FS apply.

[59] However, Mr Lukas says he also provided terms of engagement to Mr BW in

2014, 2015 and 2016. There are certain aspects of these terms of engagement that are somewhat troubling, and although not directly related to Mr Lukas’ conduct in 2017, they cannot be allowed to pass without comment.

[60] Rule 3.5A of the Conduct and Client Care Rules provides:

A barrister sole must, prior to undertaking significant work under a retainer, provide in writing to the client the following:

(a) a copy of the client care and service information set out in the preface to these rules; and [...]

[61] The preface to the Rules sets out in 9 bullet points what must be provided to a client. These include:

- information about the work to be completed;

- clear information and advice;

- keeping the client informed about the work being done;

- advising when the work is completed.

[62] None of the versions of the terms of engagement provided by Mr Lukas include any of this information.

[63] The terms of engagement provided by [AB] contain a number of provisions that seemingly impose obligations on the client to keep the firm informed about events which should be part of the reporting obligations of the barrister. For example, paragraph 8 reads:

You will need to keep us informed of all important developments and time frames relevant to your case...

[64] Paragraph 9 reads:

You must advise us of any problems or concerns that you may have as soon as possible.

[65] Some of the other versions are not relevant to work to be undertaken by a barrister. For example, paragraph 21 of one of the versions provides:

... where your matter involves a transaction which concludes with a settlement such as the sale of a property, a business, shares or other assets, or where I otherwise hold your funds, you irrevocably instruct me to deduct my fees, disbursements and charges from the funds I hold.

[66] Another form of the terms of engagement provided refers to situations where the barrister is acting on “property and financing transactions where payment of money is due by” the client.

[67] The Standards Committee conclusion that the engagement process was “flawed” and that there is no evidence of any discussion between Mr Lukas and Mr BW about these matters, has not been countered in any way and is firmly endorsed on review.

[68] The supporting reasons provided by Mr Lukas with his application commence with making much of the fact that Mr BW was unlawfully in New Zealand. I accept Mr Lukas’ assertions that Mr BW had been informed of that on several occasions, but that has no relevance to the complaints made by Dr CV and Mr BW about the advice and service provided by Mr Lukas.

[69] Mr Lukas implies that it was Mr BW’s responsibility to complete the application forms and provide all supporting material. In essence, he asserts that the fact the application was initially rejected was Mr BW’s responsibility.

[70] Mr Lukas practices as a barrister. The common perception of a barrister is that he or she has experience in specific areas of law. Mr Lukas was practicing in immigration law and it was reasonable to expect that he had knowledge and experience somewhat greater than a general practitioner. It was Mr Lukas’ role to

check the application forms were fully and accurately completed before filing the same. That was a reasonable expectation on Mr BW’s behalf.

[71] It would also be reasonable to expect that Mr Lukas would have advised Mr BW that in such situations it was likely INZ would call for a security check which would result in somewhat more time being taken to process the application. Instead, it would seem that Mr Lukas merely lodged the application forms as completed and then adopted a passive role as the application was processed. He advised Dr CV and Mr BW there was little purpose in themselves contacting the department. In fact he somewhat forcefully prohibited them from doing so.

[72] It is difficult to comprehend what work Mr Lukas actually did for Mr BW and his review application offers no enlightenment in this regard.

[73] In her letter of complaint Dr CV says that she and Mr BW were not aware that anything was amiss until Mr BW was required to leave New Zealand. Mr Lukas has provided a copy of an email dated 11 March 2016 to Mr BW in which he says: “Your legal status in New Zealand at the moment is an unlawful status”.

[74] In that email, Mr Lukas goes on to explain the basis on which he intended to ask the Minister to exercise his discretion in the s 61 application to allow Mr BW’s visa to be granted. This was on the grounds that Mr BW had previously been misled by an unlicensed person acting as an immigration agent.

[75] Mr Lukas warned Mr BW there was no guarantee this would succeed and advised that “the normal procedural for the people with unlawful status is this: an unlawful person has to leave the country and apply for any kind of visa offshore”.32

[76] Notwithstanding his own advice, and the outcome of the first application pursuant to s 61,33 Mr Lukas made three applications34, all of which received the same response.

[77] Mr Lukas says that he acted on instructions from Mr BW to make all three applications. Mr BW says that he gave instructions to make the applications on advice from Mr Lukas.

32 This quotation is included exactly as set out by Mr Lukas

33 The response from INZ made it absolutely clear that as Mr BW’s visa had expired he had no legal right to apply for another visa, and an application pursuant to s61 did not have to be considered in these circumstances.

34 16 April 2014, 26 September 2014, 5 June 2015

[78] Mr BW was seeking advice from Mr Lukas and it was reasonable that he should instruct Mr Lukas accordingly. Mr Lukas’ persistence in continuing with the applications must be questioned. Similarly, the complaint to the Ombudsman about the response from INZ to the s61 application in September 2014 was a pointless exercise.

[79] In the complaint Dr CV says that Mr Lukas “made it quite clear to [them] that they were NOT to have any contact with Immigration New Zealand”. In an email to both Dr CV and Mr BW, Mr Lukas said:35

I will provide a weekly update email as you requested. Please do not contact

INZ as this is a breach of TOE.

[80] Mr Lukas resorted to that phrase again when Dr CV sent her email to Mr FS

raising issues about Mr Lukas’ services.

[81] In that regard, Mr Lukas’ allegations could be perceived as bullying, because, there is nothing in the terms of engagement to that effect and in any event, a lawyer cannot direct or dictate to a client as to who they may or may not make contact with.

The retainer / reporting / payment of fees

[82] Mr Lukas rendered his invoice on 12 July 2017 to [AB] and the statement prepared by that firm dated 14 July indicates that payment had been made. This would have been before the application for residency was confirmed as “accepted” – it had merely been physically lodged, which seemingly amounted to little more than Mr Lukas merely forwarding the application form as completed by Mr BW.

[83] There is no evidence on the file to show that [AB]’s statement was sent to Mr BW and by October 2017 Dr CV was asking Mr FS for information as to what payments had been made. It would seem Mr FS did not respond and on 14 December

2017 Dr CV sent another email to him:

I am enquiring as to whether or not payments have been made to Yuri, as we have received no reports regarding any work undertaken on our behalf. To date we have a very limited idea of what services Yuri has undertaken or what work has been done on our behalf.

[84] In her email Dr CV included a number of other points of concern with Mr Lukas’ services, particularly the lack of information about the work that had been undertaken on Mr BW’s behalf.

35 Mr Lukas, email to Mr BW and Dr CV (24 July 2017).

[85] Mr FS sent that email to Mr Lukas who then sent an email to Dr CV and

Mr BW which read:36

Good day C and B

I have received this strange email from F. Please explain.

[86] Dr CV responded:

This is the email sent to F this morning asking for account updates.

[87] By return, Mr Lukas replied:

Ok. I treat this as a serious breach of the terms of engagement.

[88] There is here a serious lack of information and reporting from Mr Lukas to his instructing solicitors and to his clients. By December 2017 Dr CV and Mr BW do not know what work Mr Lukas has undertaken and what payments have been made.

[89] Mr Lukas spends a considerable amount of his submissions arguing that he had no authority (or obligation) to report to Dr CV as she was not his client.

[90] In this regard, there was authority provided by Mr BW for Dr CV to represent him in New Zealand. In addition, a statutory declaration had been completed by Mr BW37 which sets out the degree of involvement of Dr CV with Mr BW’s application including that he signed an authority for her to give instructions to Mr Lukas on his behalf.

[91] Mr Lukas submits that the Standards Committee did not take account of numerous telephone and skype conversations between himself and Mr BW. Mr BW says he does not have a skype facility and that he received no telephone calls from Mr Lukas while he was in [country]. He and Dr CV (correctly) note that Mr Lukas has not provided any evidence of calls being made. Mr Lukas’ time records do not provide this evidence.

Conclusion

[92] The Standards Committee has made three findings of unsatisfactory conduct against Mr Lukas:

36 Mr Lukas, email to Dr CV and Mr BW(14 December 2017).

37 Attachment B to their response to the application for review. The declaration is dated 10 April

2019.

(a) a finding that Mr Lukas’ failings in relation to the engagement process, his reporting (the lack thereof), and information about the work to be undertaken, fell short of the standard of care and competence that Mr BW and Dr CV were entitled to expect of a reasonably competent lawyer (s 12(a) of the Lawyers and Conveyancers Act 2006);

(b) advising (directing) Mr BW and Dr CV not to contact INZ, and that this amounted to a breach of the terms of engagement, was conduct that would be regarded by lawyers of good standing as being unacceptable (s 12(b) Lawyers and Conveyancers Act 2006);

(c) a failure to provide adequate information as to the work carried out for which an invoice was rendered (s 12(c) Lawyers and Conveyancers Act

2006, by reason of a breach of r 9.6 of the Rules).

[93] These findings constitute a fair reflection of the poor service and advice provided to Mr BW.

Decision

[94] Pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006, the unsatisfactory conduct determinations of the Standards Committee are confirmed the orders imposed by the Committee stand. For the avoidance of doubt, I note the further fine and further unsatisfactory conduct determination I make in [95]–[107] below, and the costs order on review.

Additional matters

[95] On two occasions Mr Lukas has accused Dr CV and Mr BW that their actions amounted to a “breach of the terms of engagement”. The two instances Mr Lukas refers to were:

(a) when they contacted INZ directly; and

(b) when they made complaints to [AB] in the first instance.

[96] In his application for review Mr Lukas says that the Standards Committee only reviewed the terms of engagement issued by [AB], whereas he had issued his standard terms of engagement to Mr BW in 2014 and the years following. These he says, were integrated into his electronic signature so that they were provided every time he sent an email.

[97] He implies that the instances he referred to were addressed in the terms of engagement provided by him.

[98] I have reviewed all of the terms of engagement provided by Mr Lukas, and none of them stipulate that the client was not able to take the action that Mr Lukas says were in breach of the terms. In addition, I have reservations that any terms of engagement could prevent a client contacting INZ directly, and quite clearly Mr BW and Dr CV had absolutely every right to make their complaints to [AB].

[99] These allegations by Mr Lukas are yet further examples of conduct by

Mr Lukas that cannot be allowed to pass unchallenged.

[100] The allegations by Mr Lukas are threatening in nature, the implication being that a breach of the terms of engagement carries some sort of penalty.

[101] Such conduct is completely at odds with a lawyer’s fundamental duty to care for and protect the client.

[102] Mr Lukas’ threatening comments amounts to unsatisfactory conduct in terms of s 12(b) of the Lawyers and Conveyancers Act 2006.38

[103] As this Office has all of the powers of the Standards Committee,39 I make a further finding of unsatisfactory conduct against Mr Lukas pursuant to ss 12(b) of the Act, being conduct that lawyers of good standing would find to be unacceptable.

Orders

[104] In respect of the further finding of unsatisfactory conduct against Mr Lukas a fine is the appropriate penalty to impose.

[105] With regard to that finding, I order pursuant to s 156(1)(i) of the Lawyers and Conveyancers Act 2006 Mr Lukas to pay a fine of $500 to the New Zealand Law Society.

Costs

[106] As I have confirmed the determination of the Standards Committee and made an additional finding of unsatisfactory conduct against Mr Lukas, it is appropriate that

38 Section 12(b) defines unsatisfactory conduct as “conduct that would be regarded by lawyers of good standing as being unacceptable including (i) conduct unbecoming ...; or (ii) unprofessional conduct.”

39 Section 211(1)(b) of the Lawyers and Conveyancers Act 2006.

an order for payment of costs be made against him as provided in the Costs Orders

Guidelines issued by this Office.

[107] In the circumstances, Mr Lukas is ordered to pay the sum of $1,200 by way of costs to the New Zealand Law Society by 31 January 2020.pursuant to s 210(1) of the Act. Pursuant to s 215(3)(a) of the Act, the costs order may be enforced in the District Court.

Publication

[108] The fundamental purpose of the Lawyers and Conveyancers Act is to protect the consumers of legal services40 and to maintain public confidence in the provision of legal services.

[109] Mr Lukas has done neither and I am minded to order publication of this decision pursuant to s 206(4) of the Act, including Mr Lukas’ name.41

[110] Before doing so I will give the parties a period of two months to make submissions in favour of, or against, this proposal. I am unlikely to grant an extension of this time period unless the interests of justice require so.

_{DATED this 29}TH _{day of November 2019}

O Vaughan

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 Lukas as the Applicant

Mr BW and Dr CV as the Respondents

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

40 Section 4 of the Lawyers and Conveyancers Act 2006.

41 Section 206(4) of the Act.