AR v NM [2019] NZLCRO 43 (10 April 2019)

Last Updated: 3 May 2019

	LCRO 70/2018
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	AR Applicant
AND	NM Respondent

DECISION

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

Introduction

[1] Mrs AR has applied for a review of a decision by the [Area] Standards Committee [X] (the Committee) to take no further action in respect of her complaint concerning the conduct of Mrs NM, at the relevant time, a director of NM Law Limited, an incorporated firm (the firm).

[2] This review concerns Mrs NM having acted for Mrs AR’s husband, Mr M AR, in lodging a Notice of Claim pursuant to s 42 of the Property (Relationships) Act 1976 (PRA), revoking an enduring power of attorney in Mrs AR’s favour, and related matters.

[3] Mrs AR and Mr AR were married in 1995. Eleven years later, in 2006, Mr AR suffered a heart attack which Mrs AR says left him with brain damage.

[4] In June 2010, Mr AR, as settlor, created a trust. The trustee was a trustee company. The discretionary beneficiaries included Mrs AR, Mr AR’s children, and Mr AR named as the final beneficiary.1

[5] Mr AR also appointed Mrs AR as his attorney pursuant to an enduring power of attorney in relation to property. This authorised Mrs AR “to act while [he was] mentally capable and to continue to act if [he] became mentally incapable”. Specific powers were included concerning the trust.2

[6] The following year in April 2011, Mrs AR replaced the trustee company as trustee.3 Five months later, in September 2011, the trust purchased a residential property (the property) assisted by a loan from a finance company.

[7] During September 2017, Mr AR consulted Mrs NM who, on 26 September 2017, lodged the Notice of Claim against the title to the property claiming an interest “by virtue of the marriage” to Mrs AR who, as trustee of the trust, was the registered owner of the property.

[8] On 3 October 2017, at Mrs NM’s instigation, Mr AR was assessed by a doctor who reported to Mrs NM on 15 November 2017 that Mr AR’s “general decision making capacity” was “relative[ly] good” taking into account “his age and medical background”.

[9] Mrs NM informed Mrs AR by letter on 19 October 2017 that the enduring power of attorney in Mrs AR’s favour “is revoked effective 27 September 2017”, the Notice of Claim was “to remain”, and the property needed to be sold to avert a mortgagee sale by the finance company. Mrs NM recommended that Mrs AR consult a lawyer “without delay so we can work together to form a plan”.

[10] Mr AR, accompanied by his and Mrs AR’s adult son, ES, met with Mrs NM on 20 October 2017. Before that meeting, Mr AR met with Mrs AR. He signed two notes written by Mrs AR in her own handwriting. First, his instructions to Mrs NM to withdraw his Notice of Claim, revoke the appointment of his sister as his attorney, and reappoint Mrs AR. In the second note, addressed “[t]o whom it may concern”, Mr AR stated he agreed to Mrs AR, as his attorney, removing the Notice of Claim.

[11] Mrs AR says at the meeting with Mrs NM that followed, Mrs NM “ripped up” Mr AR’s instructions and “accused” Mrs AR and ES of “coercion” of Mr AR.

1 Deed of Trust, 30 June 2010.

2 Enduring Power of Attorney in Relation to Property, 30 June 2010.

3 Deed of Retirement and Appointment of Trustees, 21 April 2011.

[12] In following correspondence to Mrs AR, Mrs NM repeated her requests for information about the trust, explained trustees’ duties and responsibilities, expressed concern about the overdue finance company loan and a possible mortgagee sale, recommended the sale of the property, and repeated that Mrs AR obtain legal advice.

[13] In her letter to Mrs AR dated 13 November 2017, Mrs NM set a deadline for response by Mrs AR of midday, Thursday 16 November 2017, failing which a Without Notice Application would be made to the Court for orders of sale of the property, vacant possession, disclosure of trust documents, appointment of a replacement trustee, and legal costs. Mrs NM again expressed the hope that the matter could be “sorted out without the need for Court proceedings”.

Complaint

[14] Mrs AR lodged a complaint with the Lawyers Complaints Service on 13 February 2018. She described Mrs NM’s conduct as “appalling and unacceptable behaviour”. She asked the Committee (a) to advise her what steps she needed to take to resolve her issues with Mr AR, and (b) to recommend a lawyer to act for her to do so.

(1) Capacity

[15] Mrs AR claimed that Ms NM when acting for and on behalf of Mr AR, had “acted improperly and possibly illegally” by lodging a notice of claim against the title to the property at a time when (a) Mr AR did not have the capacity to do so, and (b) Mrs AR was Mr AR’s attorney.

(2) Communication

[16] She alleged that Mrs NM failed to communicate with [Mrs AR], as Mr AR’s attorney, before [Mrs NM] lodged the notice of claim.

[17] She says she “felt bullied, threatened, and intimidated” when Ms NM did write to her.

Response

[18] Mrs NM declined the Lawyers Complaints Service’s invitation to respond to Mrs AR’s complaint.

Standards Committee decision

[19] The Committee delivered its decision on 27 March 2018 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.

[20] In the Committee’s view, Mrs NM had “acted in accordance with [Mr AR’s] instructions and interests”.

(1) Capacity

(a) Notice of Claim

[21] The Committee noted that Mrs NM had completed the certificate on the Notice of Claim instrument that she “[had] the authority” to act for Mr AR who “[had] the legal capacity to authorise [her] to lodge” the Notice of Claim against the title to the property.

[22] Having reviewed the notice of claim along with the relevant provisions of the PRA, the Committee concluded that the Notice of Claim “met” the requirements of the PRA.

(b) Enduring power of attorney

[23] The Committee declined jurisdiction to consider whether Mr AR had capacity to revoke the enduring power of attorney stating that “[q]uestions of capacity ... are for the Courts to determine, not a Standards Committee”.

(2) Finance company — threatened mortgagee sale

[24] The Committee found “no fault in Mrs NM urging Mrs AR” to “take steps to resolve the problem”, and to obtain legal advice on this issue.

(3) Communications

[25] In the Committee’s view, Mrs NM had written to Mrs AR explaining Mr AR’s “position in a clear and forthright manner”.

[26] Concerning Mrs AR’s request for directions, the Committee explained that its role was to consider and determine complaints about a lawyer’s conduct, “not to provide legal advice” as requested by Mrs AR.

Application for review

[27] Mrs AR filed her application for review with this Office on 3 May 2018. She seeks (a) a “reprimand” for Mrs NM in respect of [Mrs NM’s] “unprofessional dealings” carrying out Mr AR’s instructions, and (b) withdrawal of the Notice of Claim from the title to the property.

(1) Trust

[28] She says the Committee failed to appreciate that it was she who created the trust, not Mr AR.

(2) Capacity

[29] Mrs AR says the Committee also failed to fully acknowledge the extent of Mr AR’s brain injury which necessitated him appointing her as his attorney. She explained that as a result of his heart attack in 2006, Mr AR had “a very bad heart”, and suffered from “short term memory loss”.

[30] She claims the doctor’s November 2017 assessment of Mr AR supported her view that Mr AR did not have the capacity to instruct Mrs NM to revoke the enduring power of attorney, and to lodge his Notice of Claim.

Response

[31] In her response filed in this Office on 23 May 2018, Mrs NM points out that Mrs AR, who was not [Mrs NM’s] client, was “seeking to achieve outcomes that are not available to her through the complaints process”.

[32] She says she has nothing further to add other than to say she agrees with the Committee’s decision.

Review on the papers

[33] 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.

[34] 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.

Nature and scope of review

[35] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:4

... 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.

[36] More recently, the High Court has described a review by this Office in the following way:5

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.

[37] 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.

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

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

Issues

[38] I have identified the following issues for consideration on this review:

• (a) What were Mrs NM’s professional obligations concerning Mr AR’s mental capacity at the time he instructed Mrs NM to lodge the Notice of Claim, and revoke the enduring power of attorney?
  
• (b) Was Mrs NM prevented from acting for Mr AR because Mrs AR was Mr AR’s attorney?
  
• (c) Did Mrs NM owe any professional duties and obligations to Mrs AR? If so, did Mrs NM discharge those duties and obligations? In particular, did Mrs NM treat Mrs AR with integrity, respect and courtesy?
  

Analysis

(1) Notice of Claim, revoke enduring power of attorney — issues (a), (b)

(a) Instructions

[39] Mr AR left the property, where he and Mrs AR lived, on 5 October 2017.

[40] Before he did so he had already instructed Mrs NM to (a) advise and assist him on issues concerning the administration of the trust, (b) lodge a Notice of Claim against the title to the property, (c) revoke the enduring power of attorney in Mrs AR’s favour, and (d) advise him how to deal with the finance company whose overdue loan was secured by mortgage over the property.

(b) Retainer — capacity

[41] The term “retainer” is described in r 1.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the rules) as “an agreement under which a lawyer undertakes to provide or does provide legal services to a client”.

[42] Where a person enters into a contract that does not concern property, which would include a retainer between lawyer and client, the Courts have stated that the test of capacity required is related to the transaction. In other words, “whether the person ...

is able to understand the nature of the transaction when explained to him [or her]”, as opposed to the details.6

[43] Such contracts are “voidable only at the suit of the person lacking capacity [who] must also show that the other party knew of this condition”.7

[44] Mrs AR claims that because she was Mr AR’s attorney pursuant to an enduring power of attorney Mrs NM ought to have consulted with her. For that reason, I mention the following rules.

[45] Lawyers’ duties owed to their clients include disclosure of information to, and consultation with clients: rr 7 and 7.1. For that purpose, information must be provided to a client “in a manner that is clear and not misleading given the identify and capabilities of a client and the nature of the information”: r 1.6.

[46] The observation has been made that if a lawyer is aware that a client has a diminished comprehension “this does not negate the lawyer’s duty to consult with the client and provide information to them; indeed, it is arguable it intensifies it”.8

[47] One of the exceptions to a lawyer’s duty to provide a client with information on client care and service is where the client “is a person with a mental health issue or disability”.9 However, there is no direction to lawyers how to approach a situation where requested to act, or acting for a client whom “the lawyer concludes (or has become) incapable of giving ... instructions”. The difficulty confronting a lawyer in such circumstances is that the lawyer “may not assist the client in pursuing a course of action into which the client does not have the capacity to bind himself or herself”.10

(c) Enduring power of attorney

[48] As noted earlier, the enduring power of attorney created by Mr AR authorised Mrs AR “to act while [he was] mentally capable and to continue to act if [he] became mentally incapable”.11 A brief note on the relevant provisions in the Protection of

6 Scott v Wise [1986] 2 NZLR 484 (CA) at 491.

7 At 492.

8 Duncan Webb, Kathryn Dalziel and Kerry Cook Ethics, Professional Responsibility and the Lawyer (3rd ed, LexisNexis, Wellington, 2016) at [5.5].

9 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the rules), r 3.7(c)(i).

10 Webb, Dalziel and Cook at [5.5].

11 Protection of Personal and Property Rights Act 1988, s 97(4)(a) — “or (b) authorise the enduring power of attorney to have effect only if the donor becomes mentally incapable”. Section 97 also contains provisions concerning the scope of an attorney’s authority to act. Section 99D — a medical certificate of incapacity is required if the enduring power of attorney does not come into effect until the donor becomes mentally incapable.

Personal and Property Rights Act 1988 (PPPR Act) concerning mental capability, or incapability assists to provide background on the discussion that follows.

[49] Unlike ordinary powers of attorney, the law in respect of which is to be found in the general law of agency, enduring powers of attorney both as to a person’s property, and a person’s personal care and welfare are creatures of statute provided for in Part 9 of the PPPR Act.12

(i) Creation

[50] Consistent with the presumption of competence contained in s 93B, under s 94(1), a person who grants an enduring power of attorney as to property “is mentally incapable ... if ... not wholly competent to manage his or her own affairs in relation to his or her property”.13

[51] To that end, s 94A(7) requires that the witness to the donor’s signature must “certify on the prescribed form for the certificate” that, amongst other things:14

(ab) ... the witness believes on reasonable grounds that the donor–

(i) understands the nature of the instrument; and

(ii) understands the potential risks and consequences of the instrument; and

(iii) is not acting under pressure or duress; and

(b) the witness has no reason to suspect that the donor was or may have been mentally incapable at the time the donor signed the instrument; and ...

[52] Where a power of attorney meets the requirements of s 94A, then except as otherwise stated in s 95, a power of attorney will be an enduring power of attorney.15
[53] The PPPR Act contains provisions concerning the scope of an attorney’s powers to act.16 If the donor becomes mentally incapable:17

12 Ordinary powers of attorney — Hinde McMorland and Sim Land Law in New Zealand (online looseleaf ed, LexisNexis) at [9.120].

13 Protection of Personal and Property Rights Act, s 94(2) concerns mental incapability concerning an enduring power of attorney as to personal care and welfare.

14 Section 94A(1) — applies to an enduring power of attorney after 25 September 2007, the date of commencement of the PPPR Amendment Act 2007; ss (7)(ab), inserted by the PPPR Amendment Act 2016, commenced from 16 March 2017. For enduring powers of attorney signed between 25 September 2007, and 16 March 2017, the witness was required to certify that “(b) the witness has no reason to suspect that the donor was or may have been mentally incapable at the time the donor signed the instrument”.

15 Section 95(1).

16 Section 97(1)–(3).

17 Section 97A.

the paramount consideration of the attorney is to use the donor’s property in the promotion and protection of the donor’s best interests, while seeking at all times to encourage the donor to develop the donor’s competence.

(ii) Revocation

[54] Section 106(1) provides that an enduring power of attorney ceases to have effect when, among other circumstances described in s 106(1), “(a) the donor, by notice in writing to the attorney, revokes the power”, or “(ba) the donor, by notice in writing to the attorney, revokes the appointment of the attorney while mentally capable of doing so”.18 Importantly, an enduring power of attorney “shall not be revoked by the donor’s mental incapacity”.19

(iii) Mental capability, incapability

[55] As noted above, to create an enduring power of attorney, the donor must not have been “mentally incapable” at the relevant time. The Family Court has held that this means “the capacity to understand the broad essentials of an enduring power of attorney, including the understanding that [the donor] was placing [his or her] property in safe hands”. The Court stated that “support” for that view could “be found in s 106(1)(a) which describes the donor’s capacity to revoke an enduring power of attorney as being “mentally capable of doing so” which is to “be assessed in terms of the definition of ‘mentally incapable’ in s 94(1)”.20

[56] Concerning revocation, the Court added that “capacity is related specifically to the act of revocation, not to the wider matters specified in s 94.21

(iv) Family Court jurisdiction

[57] The Family Court has “exclusive jurisdiction in all matters under the PPPR [Act]”.22 Concerning enduring powers of attorney, this is recognised in s 102(1) which provides that the Court has jurisdiction:23

18 Also, where "(b) the donor dies"; or (c) the attorney gives notice of disclaimer in accordance with s104"; or "(f) a court revokes the appointment of the attorney pursuant to section 105". See s 106A, revocation of appointment of more than one attorney; and s105, revocation by the Court. 19 Section 96.

20 Re “Tony” (1990) 5 NZFLR 609 (FC) at 624 — following Re K [1988] Ch 310 (Court of

Protection) at 313.

21Re “Tony” at 623.

22 Carrington v Carrington [2014] NZHC 869, [2014] NZFLR 571 at [64], following W v Public Trust

[2010] NZHC 33; [2010] NZFLR 277 (HC).

23 At [64].

to determine - (a) whether or not any instrument is an enduring power of attorney; or (b) whether or not the donor of an enduring power of attorney is mentally incapable.

[58] This may include a question about the validity of an enduring power of attorney, or about the mental capability (or incapability) of the donor.24

[59] Where the donor of an enduring power of attorney “has become mentally incapable”, under s 102(2), the Court has wide powers including the ability to:

• (a) determine any question as to the meaning or effect of the instrument by which the power is given:
  
• (b) determine whether or not any instrument has ceased to have effect:
  
• (c) give directions with respect to – (i) the management or disposal by the attorney of the property and affairs of the donor; or (ii) ..
  
• (d) modify the scope of the enduring power of attorney ...:
  
• (e) require the attorney to furnish information or produce documents ...;
  
• (f) give any consent or authorisation to act that the attorney would have to obtain from the donor if the donor were mentally capable: ...
  

(c) Mrs AR’s position

[60] Mrs AR claims that Mr AR lacked mental capacity to instruct Mrs NM to both lodge the Notice of Claim and revoke the enduring power of attorney.

(d) Discussion

[61] Mr AR would necessarily have provided his instructions to Mrs NM before she registered the Notice of Claim on his behalf against the title to the property on 26 September 2017.

[62] The following week, on 3 October 2017, Mr AR underwent, at Mrs NM’s request, a cognitive assessment by a doctor “to establish his baseline cognitive skills”.

[63] In his report, sent to Mrs NM six weeks later, on 15 November 2017, the doctor stated that he had, as asked, assessed Mr AR’s “decision making capacity generally”, and not “on a particular aspect (finance, health, social etc)”. He stated that Mr AR had “good cognitive abilities” taking into account “his age and medical background”. In

24 At [65]–[66].

conclusion, he stated that the assessment “result would change if any significant medical/psychological stressors intervened”.

[64] In her 19 October 2016 letter to Mrs AR, Mrs NM informed Mrs AR that the enduring power of attorney was revoked. As is evident from Mr AR’s 20 October 2016 instructions to Mrs NM, handwritten for him by Mrs AR, as well as revoking the enduring power of attorney which appointed Mrs AR six years earlier, Mr AR appointed his sister in Mrs AR’s place.

[65] Lawyers are not qualified, and therefore cannot be expected, to determine whether or not a person is mentally capable or incapable. Such assessments must be carried out by qualified medical practitioners.

[66] However, where a lawyer becomes aware that his or her client may have diminished competency or capacity, then in providing legal services to the client in a competent, diligent and professional manner the lawyer must exercise caution. Particularly so when a lawyer, aware of the client’s diminishing capacity over time, is requested by the client to substitute an existing attorney for another where the existing attorney is a spouse, relationship partner or other close relative.25

[67] From the information provided for this review, Mrs NM, having made her own assessment about Mr AR’s capacity, considered it prudent to request a medical opinion in respect of his “general decision making capacity”.

[68] Because the enduring power of attorney from Mr AR in favour of Mrs AR was in effect at the time Mr AR instructed Mrs NM, any issues Mrs AR may have about Mr AR’s mental capacity (a) to instruct Mrs NM, and (b) to revoke the enduring power of attorney are matters for the Court to determine, not a Standards Committee or this Office on review.26

[69] If having made an application to the Court any conduct issues arise for Mrs NM in the way in which she acted for Mr AR, then it would be open to Mrs AR to refer those issues to the Lawyers Complaints Service at that time.

[70] Lastly, Mrs AR claims Mrs NM “improper[ly] and possibly illegally” lodged the Notice of Claim against the title to the property. As well as being informed by Mrs NM of the Notice of Claim, Mrs AR would have received notification from Land Information New Zealand informing her of the ability to apply to have the notice removed. Any such

25 see discussion in JE v FQ LCRO 213/2012 (17 June 2015) at [21]–[28]; also HF v SZ LCRO 186/2009 (16 January 2012) at [22].

26 Protection of Personal and Property Rights Act, s 102(1)(b), 102A(b).

application may be made to the Family Court, the District Court or the High Court.27 Neither Standards Committees nor this Office on review have jurisdiction over such matters.

(2) Communications with Mrs AR — issue (c)

(a) Professional rules

[71] Rule 12 requires that “[a] lawyer must, when acting in a professional capacity, conduct dealings with others, including self-represented persons, with integrity, respect, and courtesy”.

[72] It will be noted that r 12 applies when a lawyer is acting “in a professional capacity”.28 The scope of the rule extends to persons to or from whom the lawyer has made or received enquiries, or requested information in relation to a client matter. Illustrations of the application of the rule where an adverse finding has been made against the lawyer concerned include a lawyer’s manner of communications, and not responding to letters sent to him by another lawyer engaged by the complainants. 29

[73] The rule is directed at the lawyers’ dealings with “others”. This includes “self- represented persons” in respect of whom, it has been suggested:30

a lawyer’s professional responsibility ... is potentially more onerous than were that person legally represented, which may be accentuated where he or she represents a party experienced in litigation or subject to model litigant obligations.

[74] Lawyers owe their clients a duty “within the bounds of the law and [the] rules, [to] protect and promote the interests of the client to the exclusion of the interests of third parties”.31 For that reason the observation has been made that the “balance” between that duty and lawyers’ duty not to use their knowledge and experience to the disadvantage of the unrepresented person “is arguably struck by the general proposition that, in treating unrepresented parties with courtesy and fairness, lawyers should not take unfair advantage of them”.32

27 Property (Relationships) Act 1976, s 42(3).

28 See JQ v QM LCRO 97/2011 (28 August 2012) at [23].

29 EO and EP v VO LCRO 240/2010 (3 August 2011) at [7], [49] — rule 10.1 which requires that “[a] lawyer must treat other lawyers with respect and courtesy” was perhaps the relevant rule concerning the lawyer not responding to another lawyer’s correspondence.

30 GE Dal Pont Lawyers’ Professional Responsibility (6th ed, 2017, Thomson Reuters, Sydney) at [21.275].

31 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 6.

32 Dal Pont at [21.275].

[75] The rule requires that lawyers treat third parties with “integrity, respect and courtesy”. In that context the word “integrity” means “[s]oundness of moral principle; the character of uncorrupted virtue; uprightness; honesty; sincerity”.33

[76] Illustrations of contraventions of r 12 include a lawyer “stat(ing) something as fact without independently verifying the veracity of the statement”;34 a lawyer who had written to another lawyer’s client first, saying, amongst other things, that the lawyer had no confidence in the other lawyer, and secondly, making certain accusations to the other lawyer’s client.35

(b) Discussion

• (i) Communications before lodgement the Notice of Claim
  

[77] Mrs AR says Mrs NM failed to communicate with [Mrs AR], as Mr AR’s attorney, before Mrs NM carried out Mr AR’s instructions to lodge the Notice of Claim against the title to the property.

[78] This aspect of Mrs AR’s complaint also concerns Mr AR’s mental capacity at that time. For that reason, any challenge by Mrs AR, as Mr AR’s attorney, about Mr AR having provided instructions to Mrs NM is similarly a matter for the Family Court to determine.

(ii) Communications after lodgement of the Notice of Claim

[79] Mrs AR states that when Ms NM did write to her, she “felt bullied, threatened, and intimidated” by Mrs NM.

[80] For the following reasons the conclusion I have reached is that none of Mrs NM’s written communications to Mrs AR that have been produced, and to which I refer, are capable of being described in this way.

[81] Mrs NM's first communication to Mrs AR explained that the enduring power of attorney was revoked as from 27 September 2017, a Notice of Claim had been registered against the title to the property, and that the outstanding finance company loan needed to be “resolved urgently”. Mrs NM added that “urgent steps” were required to sell the

33 Oxford English Dictionary <www.oed.com> — see also lawyers’ duties of “respect and courtesy” owed to clients (r 3.1), and other lawyers (r 10.1).

34 FU v UN LCRO 244/2010 (6 October 2011).

35 GJ v TW LCRO 205/2011 (14 December 2011).

property to avert the finance company taking possession and exercising its power of sale as mortgagee. She “urge[d]” Mrs AR to obtain legal advice.

[82] In subsequent emails Mrs NM repeated the need to avoid a mortgagee sale of the property, and to that end to obtain appraisals as to value. She asked Mrs AR to provide copies of the trust deed, enduring powers of attorney and information about the trust including payment of compensation. She again stated her preference for a “pragmatic approach” rather than applying to the Court for disclosure, a review of the trust, and an order of sale. She repeated her request to Mrs AR to obtain legal advice.

[83] In her 13 November 2017 letter, Mrs NM explained her understanding of the trust, and made requests for information by way of a formal demand. She referred to the expired finance company loan, and to her earlier suggestions that the property be sold not to ES, but on the open market. In conclusion, Mrs NM repeated that issues could be resolved without referral to the Court, and that Mrs AR would need to obtain legal advice.36

[84] In my view, the tone of Mrs NM’s communications was matter-of-fact and business-like. I do not consider that any of Mrs NM’s communications give rise to any issues of a disciplinary nature for Mrs NM.

Decision

[85] For the above reasons, pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006, the decision of the Committee is confirmed.

Anonymised publication

[86] 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 bereft of anything as might lead to their identification.

36 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules, r 12.1 — “When a lawyer knows that a person is self-represented, the lawyer should normally inform that person of the right to take legal advice”.

DATED this 10th day of April 2019

B A Galloway

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:

Mrs AR as the Applicant Mrs NM as the Respondent

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