RN v TL [2019] NZLCRO 51 (15 April 2019)

Last Updated: 29 May 2019

	LCRO 133/2018
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	RN Applicant
AND	TL Respondent

DECISION

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

Introduction

[1] Mr RN has applied for a review of a decision by the [Area] Standards Committee

[X] (the Committee) which determined his complaint about Ms TL 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).

Background

[2] Ms TL acted for Mr RN in a relationship property dispute with his former partner, Ms SM. Ms SM commenced proceedings in the Family Court against Mr RN. That proceeding was resolved without a hearing, although orders were made by the Family Court after a judicial settlement conference at which Mr RN proposed settlement terms to Ms SM.

[3] Shortly after the settlement conference, Mr RN began to express his reservations to Ms TL by email. Ms TL replied on 13 April 2018 recording the instructions

he had given her at the judicial settlement conference and her position on the concerns he had set out in his email.

[4] Mr RN disagreed with the position set out by Ms TL and made a complaint to the New Zealand Law Society (NZLS).

Complaint

[5] Mr RN complains that Ms TL did not follow his instructions, did not listen to him, did not answer his questions regarding family law, and proposed settlement with Ms SM on terms he no longer considers were fair to him.

[6] Mr RN seeks compensation for the costs of his involvement in the Family Court process and appears resistant to paying Ms TL’s fees, which total $10,976.50 (including GST) for the services she provided to him.

[7] Mr RN’s complaint was directed through the NZLS Early Intervention Process. Ms TL was offered the opportunity to respond, and chose not to, having been advised that the Committee had formed a preliminary view of Mr RN’s complaint and was unlikely to take further action.

[8] The Committee concluded its process without substantive input from Ms TL but with reference to the letter she had sent to Mr RN, dated 13 April 2018.

[9] The Committee determined Mr RN’s complaint on the basis that as it did not disclose conduct on Ms TL’s part that fell below a proper professional standard, further action was not necessary or appropriate.

[10] Mr RN disagrees with the Committee and applied for a review.

Review Application

[11] Mr RN’s key concern on review was that Ms TL did not protect his life savings and instead bullied him into settling on terms he rejects as unfair. Mr RN made various comments about Ms TL’s conduct in the course of acting for him including at the judicial settlement conference when, he says, she encouraged him to lie. Mr RN also said he found Ms TL’s refusal to vary her private retainer and act on legal aid objectionable. Mr RN believes Ms TL should apologise to him and refund everything he has paid to her.

[12] Ms TL replied to the application for review and provided documents in support of her position. Ms TL set out the background to the retainer and referred to the materials Mr RN had provided to her in support of his position as respondent in the Family Court proceeding. Ms TL says she carefully confirmed Mr RN’s instructions and converted those into affidavits with relevant documents annexed. Ms TL referred to the facts disclosed to her by Mr RN, including the existence of a trust, decisions Mr RN had made over the 15 years he had been with Ms SM and choices he had made over that time.

[13] Ms TL also referred to the views expressed by the Family Court Judge at the settlement conference that the parties had attended. Ms TL considered it was clear from the Judge’s comments that it would be difficult for Mr RN to sustain the position that he and Ms SM were not in a qualifying relationship for the purposes of the Property (Relationships) Act 1976 (the PRA) if the matter were to proceed to a hearing.

[14] Ms TL says she set out calculations for Mr RN to demonstrate the extent of the relationship property pool, and advised him that if a Court found he and Ms SM were in a qualifying relationship, as she considered likely, the property she had identified would be divided according to the provisions of the PRA. Ms TL referred to her discussions with Mr RN in the course of the settlement conference and to Mr RN’s instructions to advance a settlement proposal to Ms SM on the terms they discussed.

[15] Ms TL says Ms SM accepted the proposal and the parties subsequently settled all matters in dispute between them. Ms TL referred to an email Mr RN sent her on 29 March 2018 in which he thanked her for “ending this nightmare”, and indicated he was optimistic Ms SM would accept his settlement offer.

[16] However, Ms TL said Mr RN’s attitude towards her changed and he became hostile and critical towards her. Ms TL attached emails that are indicative of Mr RN’s changing views, as well as emails from her office seeking payment of her fees, which Ms TL says Mr RN has not paid.

Review hearing

[17] Mr RN attended a review hearing in Hamilton on 11 April 2019. Ms TL was not required to attend and did not exercise her right to do so.

Nature and scope of review

[18] 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.

[19] 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.

[20] 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:

• (a) consider all of the available material afresh, including the Committee’s decision; and
  
• (b) provide an independent opinion based on those materials.
  

Discussion

[21] At the review hearing, Mr RN said that his driving concern was that Ms TL had failed to protect his life savings. He said that was fundamental to his instructions to her, but she did not follow his instructions, and did not achieve that objective. Mr RN says he read something somewhere that lead him to expect his property entitlements would be

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].

greater but acknowledged that expectation had not emerged from him reading the PRA, or from anything Ms TL had told him.

[22] Mr RN appeared to accept at the review hearing that the PRA constrained the extent to which he could achieve his objective of retaining his life savings, given the historical facts of his relationship with Ms SM, Ms TL’s advice and the Judge’s view at the settlement conference. It seems Mr RN understood from his discussions with Ms TL that he was unlikely to succeed in his overall objective.

[23] It is assumed Mr RN was reluctant to proceed to a hearing, knowing a Court was unlikely to support his claim. The correspondence exchanged at the time indicates that on Mr RN’s instructions, Ms TL took the initiative and offered settlement terms which Ms SM accepted. The fact that Mr RN came to regret the terms on which he offered to settle is not evidence that Ms TL did not provide competent advice.

[24] None of the materials available on review disclose conduct on Ms TL’s part that falls below a proper professional standard. A lawyer can never be entirely certain that a client understands the advice the lawyer has given. However, Mr RN is an adult who can ask questions and seek clarification if he is uncertain. There is no indication on the materials of Mr RN having demonstrated reluctance at the time, and his correspondence at the time suggests the opposite is the case. There is no obvious advantage for Ms TL in pressuring Mr RN into offering settlement on any terms to Ms SM rather than proceeding to a hearing.

[25] While the PRA may not have operated to Mr RN’s satisfaction, there is no evidential basis to support the contention that Ms TL did not explain the relevant law to Mr RN, or how it applied to the facts of his relationship with Ms SM. That Mr RN is left with a lingering sense of unfairness is unfortunate, but does not equate to a failure on the part of Ms TL to provide competent advice.

[26] Mr RN may well have felt overborne by being forced into the Family Court process. That is often the case for respondents. However, there is no evidence of Ms TL having bullied Mr RN into settling on unfair terms. Mr RN’s comment that Ms TL encouraged him to lie is unsupported and firmly rejected.

[27] Mr RN referred to Ms TL’s refusal to vary her private retainer so she could act on legal aid. The extent of Ms TL’s professional obligation in that regard was to inform Mr RN that he may be eligible for legal aid if that had been the case. As Ms TL’s view was that Mr RN’s financial position did not entitle him to a grant of aid, and there is no evidence to counter that, her conduct cannot be faulted on that basis.

[28] As there is also no evidence that Mr RN has paid any money to Ms TL, there is no logical basis on which she could be ordered to refund money.

[29] There is no evidential basis on which Ms TL could be ordered to apologise to Mr RN.

[30] In the circumstances, the Committee’s decision is 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 15th day of April 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 RN as the Applicant Ms TL as the Respondent

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