TE v KT [2019] NZLCRO 36 (18 March 2019)

Last Updated: 3 May 2019

	LCRO 222/2018
CONCERNING	an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING	a determination of the [City] SC [X]
BETWEEN	TE Applicant
AND	KT and RG Respondent

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

DECISION

Introduction

[1] Mr TE has applied for a review of a resolution by [City] SC [X] made on [date] in which the Committee resolved to adjourn the hearing until a High Court proceeding Mr TE has brought in negligence against Mr KT and Mr RG (the lawyers) is concluded.

[2] It is assumed, without determining the point, that s 194(1) of the Lawyers and Conveyancers Act 2006 (the Act) provides this Office with jurisdiction to review a Committee’s resolution to adjourn, even though that is not a “determination, requirement or order made, or direction given by a Standards Committee”.

Review application

[3] Mr TE says he has a complex file with the New Zealand Law Society (NZLS), but his lawyers have refined his complaint. Mr TE wants an urgent determination, asks

NZLS for help and says he has sustained losses attributable to Mr KT as counsel, and Mr RG his instructing solicitor. Mr TE contends it will be apparent from any inquiry that:

(a) on many occasions Mr KT did not reply to his complaint;

(b) at the eleventh-hour Mr KT denied responsibility and attached his defence to Mr TE’s civil claims;

(c) Mr KT offered no evidence to counter Mr TE’s claims of serious malpractice;

(d) it is imperative that the Committee protect the public by inquiring into and determining Mr TE’s complaints about overwhelming, flagrant, glaring and multiple instances of misconduct on the part of Mr KT; and

(e) adjourning determination of his complaint is an abandonment and abdication of the Committee’s responsibilities to the High Court.

[4] Mr TE objects to the assumption implicit in the Committee’s resolution to adjourn, namely that there may yet be no contested High Court process. It is argued that the possibility of loss to Mr TE is a direct result of negligence on the part of the lawyers. In short, the argument goes, but for the lawyers’ conduct in respect of the arbitration and in a High Court appeal, Mr TE would have sustained none of the losses he attributes to the lawyers in his complaint.

Review on the papers

[5] 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. Neither party has provided reasons that suggest this matter should proceed to a hearing in person. 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

[6] 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.

[7] 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

[8] Since [Date] Mr TE has been charged over $200,000 for lawyers and legal processes, including arbitration and appeals. Mr TE attributes his inability to secure the outcomes he hoped for to errors and omissions on the part of the lawyers. Mr TE wants to recover costs in relation to various legal processes by making a complaint under the Act about the lawyers’ conduct. Mr TE has also made claims against the lawyers in negligence for errors and omissions he alleges in some detail in pleadings filed in the High Court. The negligence claims are echoed in Mr TE’s complaint to NZLS.

[9] It is understood that the lawyers have filed a statement of defence denying Mr TE’s civil claims.

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].

[10] The Committee has adjourned its enquiry so that it can determine Mr TE’s complaint with reference to the evidence and other materials that may yet be filed in the course of the civil proceeding, and with evidential conflicts perhaps having been resolved in the course of the civil proceeding.

[11] Mr TE objects to the Committee adjourning determination of his complaint, because he wants answers on the negligence questions he has raised now.

[12] The processes of complaint and review under the Act are not well suited to determining complex civil claims. The inquisitorial model is not well suited to the testing of conflicting evidence under cross examination, as might be expected if a civil claim proceeds to hearing.

[13] It is not a function of Committees or this Office to provide legal opinions on civil claims made against lawyers.

[14] It is difficult to see how the Committee could resolve disputed facts without the civil claim first being resolved. If the civil claim continues to echo the concerns set out in the complaint, evidence will have to be filed at least proving duty, breach, causation, loss and perhaps also contribution.

[15] The Committee had limited options. It could have adjourned determination of Mr TE’s complaint as it did, or it could have determined the complaint without awaiting further evidence. It is difficult to see how a Committee could have found unsatisfactory conduct or misconduct without engaging in the exercise of resolving conflicts of evidence. While adjourning the complaint process keeps it alive for Mr TE, it also leaves the lawyers with an open complaint running collateral to the civil process.

[16] Although no lawyer welcomes a complaint, collateral or otherwise, leaving the complaint open enables the Committee to receive further evidence if that emerges.

[17] Legal processes take time. It is therefore not accurate to describe the resolution to adjourn as abandoning or abdicating responsibility. The Committee has only decided at this stage to allow the two collateral processes to evolve side by side so that if and when evidence is filed, it becomes available to the Committee if either party produces it. That seems entirely consistent with the exercise of discretion expected of Committees. There is no reason to believe the Committee was not alert to the implications of managing its process in the way that it has. It has that discretion.

[18] There is no basis on which to impose an imperative on the Committee to enquire and determine, just because a complainant alleges overwhelming, flagrant, glaring and multiple, but disputed, malpractice. There has to be evidence to support such allegations, and an opportunity to respond. The statutory process is flexible so Committees can adapt it to each complaint.

[19] It is assumed, without having considered them, that the materials before the Committee do not give rise to concerns that either lawyer presents a real or present danger to the public interest. If the Committee did consider that either of the lawyers presented such a danger, it could have taken steps to manage those concerns.

[20] Committees are composed of lay and lawyer members. There is no reason to believe that Standards Committee members are incapable of identifying circumstances where urgent action is necessary to protect the public interest. It seems the present facts do not give rise to concerns of that nature.

[21] The materials provided by Mr TE on review explain why he believes the Standards Committee process should continue immediately. None of those materials compel the conclusion that the Committee was wrong to adjourn its process so it can consider the evidence with the benefit of a view from the bench, which is well placed to consider and resolve evidential conflict, if that is how the Committee chooses, in its discretion, to proceed.

[22] As Mr TE says, there is no guarantee the negligence proceeding will reach a hearing. At he is the plaintiff, that choice is his to make.

[23] However the civil process is concluded, the Committee clearly has the capability to adjourn its process. There may be unfairness to both parties to some extent, but the Committee’s statutory jurisdiction is retained through the civil process so that the public interest is not neglected.

[24] Mr TE’s request for an urgent determination is misguided. Mr TE accepts his NZLS file is complex. This Office cannot conduct a review or determine the substance of a complaint until a Committee has completed its enquiry, albeit further information requests can be made on review. If Mr TE wishes to compel the Committee to complete its enquiry, the means to do that lie elsewhere. The process of review by this Office is not a back door to mandatory orders. While it may not align with Mr TE’s wants and

interests, he will have to wait out the Committee process, or raise his concerns elsewhere.

[25] There is logic to the Committee adjourning its inquiry, and there is no objectively persuasive reason to reverse or modify the resolution to adjourn. In the circumstances, the Committee’s decision is confirmed.

DATED this 18th 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 TE as the Applicant

Messrs KT and RG as the Respondents Mr CK as a Related Person

[City] SC [X]

New Zealand Law Society