UT v VU [2019] NZLCRO 29 (20 March 2019)

Last Updated: 1 April 2019

	LCRO 223/2018
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	UT Applicant
AND	VU Respondent

DECISION

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

Introduction

[1] Mr UT has applied for a review of a decision by the [Area]l Standards Committee[X] (the Committee) which determined his complaint on the basis that further action was not necessary or appropriate, pursuant to s 138(2) of the Lawyers and Conveyancers Act 2006 (the Act).

Application for review

[2] Mr UT has applied for a review on the grounds that the Committee did not understand the fundamental reasons for his complaint. He says his complaint was that he received poor service from Mr VU, whose advice is described as incomplete or vague,

of little or no value to Mr UT. Mr UT believes Mr VU should refund the $275 Mr UT paid in advance.1

[3] Mr UT says he sent Mr VU an email clarifying exactly what questions he wanted answered on 31 July 2018. Mr UT wanted “a legal response” to his questions and specific advice to support his application to Immigration New Zealand (INZ). Mr UT’s view is that if Mr VU could not provide the advice he wanted, he should have declined the retainer. Otherwise, Mr UT’s expectation was that Mr VU would answer with specifics. Instead, Mr UT received advice that contained no new substance and no legal way forward.

[4] He says Mr VU knew the case history in detail, but provided little legal guidance given the fees Mr UT paid (or was expected to pay).

[5] NZLS directed Mr UT’s complaint through its Early Resolution Service process. Mr VU’s firm was invited to reply,but told that the Committee had looked at the complaint and considered it could determine it without Mr VU’s input. Mr VU did not provide a substantive response, and as mentioned earlier the Committee determined Mr UT’s complaint without a reply from the lawyer, on the basis that further action was not necessary or appropriate.

[6] Mr UT disagrees with the outcome

Review on the papers

[7] This review has been undertaken on the papers pursuant to s 206(2) of the Act because it appears that it can be adequately determined on the basis of the information available. Having carefully read the complaint and associated materials, including the Committee’s decision and materials provided on review, no additional issues or questions arise that require further comment by either party.

Nature and scope of review

[8] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:2

1 It is noted that the terms of engagement provided by Mr VU’s firm anticipated Mr UT would pay an amount of $850 in advance of the firm doing substantive work, but it appears from Mr UT’s complaint he did not do that.

2 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.

[9] More recently, the High Court has described a review by this Office in the following way:3

A review by the LCRO is neither a judicial review nor an appeal. Those seeking a review of a Committee determination are entitled to a review based on the LCRO’s own opinion rather than on deference to the view of the Committee. A review by the LCRO is informal, inquisitorial and robust. It involves the LCRO coming to his or her own view of the fairness of the substance and process of a Committee’s determination.

Discussion

[10] Mr UT believes the advice Mr VU provided when he was asked three specific questions was incomplete, vague, and largely inadequate. Mr UT’s first question contained several elements, one of which related to the predictive nature of s 16 (presumably of the Immigration Act), which required Mr UT to satisfy INZ that there was very little risk of him offending again in future. Mr UT was at a loss to work out what more he could do to satisfy INZ that he was at low risk of reoffending, and unlikely to commit further offences. Mr UT had already provided INZ with a certificate from the [COUNTRY] police which suggests it was satisfied that Mr UT was low risk. Mr UT had also provided a probation report which is generally supportive of the position he sought to adopt.

[11] The first point to note is that although Mr VU could provide advice, he could not change history. However much Mr UT might want to change the past, his relatively recent criminal history is a matter of record. Whatever Mr UT’s other circumstances, it could not sensibly be argued that his offending was ancient history.

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

[12] Past behaviour is often taken by decision-makers as a relatively reliable indicator of future behaviour. The relative recency of Mr UT’s offending would not have gone in his favour in his applications to INZ, albeit [COUNTRY] police and probation were not unsupportive.

[13] There probably was little Mr UT could do to improve his situation other than wait, and while he did so, perhaps complete other rehabilitative programmes. Sometimes there is nothing more to be done but wait, and no more-weighty evidence to be produced in the meantime. It is difficult to envisage what more Mr VU could have told Mr UT to submit that would add weight to the materials Mr UT had already produced.

[14] As to the second question Mr UT asked, Mr VU’s advice was to check the information on the INZ file so that Mr UT would know what INZ knows. That advice was pragmatic and uncontroversial.

[15] As to the third question, Mr UT wanted to know from Mr VU what would constitute a change of circumstances that would be acceptable to INZ to support it granting Mr UT a visa. As there is a discretion to be exercised in granting visas, and Mr VU cannot change the facts, he explained the law and policy around change of circumstances, and made it clear that it was important to emphasise that the renewed application was not simply the same application dressed in new clothes.

[16] Mr VU was obliged to provide Mr UT with an independent view of his position, and to be competent in doing so. It has been said that:4

The duty of competence is in reality a duty not to be incompetent and is aimed at ensuring minimum standards of service

[17] There is nothing about Mr VU’s advice that suggests incompetence on his part, or that his advice fell below minimum standards of service. While Mr UT may feel there is little value to him in being told what he already knows or suspects, or can do nothing about, essentially that was the position and that was the advice he received, based on the three questions he asked of Mr VU. From the limited information available on review, there appears to have been little Mr UT could have done to advance his position given his particular circumstances at the time.

4 Duncan Webb, Kathryn Dalziel and Kerry Cook Ethics, Professional Responsibility and the Lawyer (3rd ed, LexisNexis, Wellington, 2016) at 303.

[18] None of the materials Mr UT has provided, either to the Committee or on review, demonstrate that Mr VU’s advice was incompetent or that his conduct fell below a proper professional standard in any other way.

[19] There is no basis on which to modify or reverse the Committee’s decision. That is therefore confirmed.

DATED this 20th 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 UT as the Applicant Mr VU as the Respondent

Mr WV as a Related Person [Area]l Standards Committee [X] New Zealand Law Society