EJ v AP [2019] NZLCRO 22 (6 March 2019)

Last Updated: 23 March 2019

	LCRO 199/2018
CONCERNING	an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING	a determination of the [Area] Standards Committee [X]
BETWEEN	EJ Applicant
AND	AP and XG Respondents

DECISION

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

Introduction

[1] Mr EJ has applied for a review of a decision by the [Area] Standards Committee [X] to take no further action in respect of his complaint concerning fees charged by, and conduct on the part of, Ms AP and Ms XG (the lawyers).

[2] The Committee’s view was that it was not necessary for the lawyers to provide a substantive response to the complaint, and their confirmation that they had secured judgment for their fees and a charging order over Mr EJ’s interest in property was a sufficient reply. The Committee considered it lacked the jurisdiction to determine liability or quantum because default judgment had been entered and it had no power to review or amend that. As the Committee could take matters no further it determined Mr EJ’s complaint pursuant to s 138(1)(f) of the Act having formed the view that Mr EJ’s remedy was through the Court system.

[3] Mr EJ disagrees with the Committee’s decision and applied for a review. He considers the Committee did not address the professional standards issues raised in his complaint.

Review Hearing

[4] Mr EJ attended a review hearing in Auckland on 28 February 2019. The lawyers were not required to attend and did not exercise their right to do so.

Nature and scope of review

[5] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:1

... 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.

[6] More recently, the High Court has described a review by this Office in the following way:2

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.

Discussion

[7] Mr EJ elaborated on his complaint at the review hearing and the potential professional standards issues were explored. All of Mr EJ’s concerns have been considered on review. I have considered whether his complaint or any part of it should

1 Deliu v Hong [2012] NZHC 158, [2012] NZAR 209 at [39]- [41].

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

be returned to the Committee for it to consider, or reconsider, and have decided not to adopt that course because, while Mr EJ’s sense of grievance is real, it is misplaced or lacks evidential support.

[8] There is no professional difficulty in Ms XG charging a fee for attendances on Mr EJ in respect of his relationship property. The fee is less than $2,000. There are no special circumstances to expose it to the jurisdiction of the Committee or this Office. It has been paid. Mr EJ was unable to explain the basis of his expectation that his initial interview would be free with reference to anything Ms XG had said to him. His expectation was misplaced. There is no reason to take further action in that regard.

[9] Mr EJ raised a number of issues arising from his interactions with Ms AP. None of the matters he raised rise to the point of being conduct issues for Ms AP to answer to. It is accepted that Mr EJ found the family court process and his former wife’s part in that upsetting. It is also accepted that he is genuinely affronted by Ms AP’s part in events. However, it is not accepted that Ms AP is professionally responsible for the sense of outrage Mr EJ displays. Ms AP’s conduct fell well within the usual parameters expected of lawyers acting for clients in similar circumstances.

[10] The evidence does not support findings that Ms AP:

• (a) contravened a direct instruction from Mr EJ;
  
• (b) told Mr EJ to shut up;
  
• (c) failed to protect the confidence of a privileged discussion she had with Mr EJ in a meeting room at the family court; or
  
• (d) failed to act on Mr EJ’s instructions in a timely manner.
  

[11] Mr EJ says what little work Ms AP did for him was of no value whatsoever. Mr EJ initially said that outcome was a measure of value. That is rejected. He seems to accept that. The lawyers’ fees and the relevant rules were discussed with Mr EJ at the review hearing. I have considered the invoices again with reference to r 9 and 9.1 and can identify no basis on which it could be said they are unfair or unreasonable. No conduct issue arises.

[12] While it may not align well with Mr EJ’s view of himself, there is no rational basis for Mr EJ to have taken affront at the lawyers referring to him as unemployed on the intituling to the debt recovery proceedings. He did not say he was employed at the time.

[13] Mr EJ said at the review hearing that he thought the lawyers would sense his dissatisfaction with the services he had received from the fact he did not pay. He said his expectations about how the lawyers would resolve his failure to pay were not met. He could not provide a rational explanation for his expectations. Those too are misplaced. The lawyers are not obliged to meet Mr EJ’s expectations in that regard, nor are they obliged to negotiate a reduction in their fees. No standards issue arises.

[14] Mr EJ’s complaint is misconceived and not well supported by cogent evidence. Nothing emerges from the materials available on review that supports Mr EJ’s criticisms of the level of service Ms AP provided under Mrs XG’s supervision.

[15] There is no evidential basis for the view that Ms AP’s conduct, or the services she provided, fell below a proper professional standard. Mr EJ’s criticisms of Ms AP’s fees lack evidential support. There is no basis on which to take further action.

[16] The Committee considered it lacked the jurisdiction to determine liability or quantum because default judgment had been entered and it had no power to review or amend that. Mr EJ has provided nothing to support his view that the Committee’s view was incorrect.

[17] The Committee considered it could take matters no further, and as Mr EJ had access to the Court system for an adequate remedy, having determined the complaint pursuant to s 138(1)(f) of the Act. Mr EJ has provided no reason to substitute my own judgement for that of the Committee.

[18] The decision is therefore confirmed.

Decision

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

DATED this 6TH day of March 2019

D Thresher

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 EJ as the Applicant

Ms XG and Ms AP as the Respondents Mr RD as a Related Person

[Area] Standards Committee [X] New Zealand Law Society Secretary for Justice