G RC v YS [2019] NZLCRO 54 (30 April 2019)

Last Updated: 29 May 2019

	LCRO 57/2018
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	G RC and D RC Applicants
AND	YS Respondent

DECISION

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

Introduction

[1] Mr G RC and Mr D RC (Messrs G and D) have applied for a review of a decision by the [Area] Standards Committee [X] (the Committee) to take no further action in respect of their complaint concerning the conduct of Mr YS, at the relevant time, a partner with [law firm], [city] (the firm).

[2] From November 2015 to December 2016, Mr YS acted for Messrs G and D’s mother, Mrs H RC, on an application to the Family Court to challenge a medical assessment that she was incapable of looking after herself, and to review certain of the decisions of Mr G as her attorney pursuant to enduring powers of attorney.1

[3] In December 2013, Mrs RC, then aged 83, suffered a stroke which caused vascular dementia. She was assessed by two geriatricians as lacking capacity and

1 Enduring powers of attorney, property, and personal care and welfare created on 22 April 1990

requiring dementia level care. As a consequence, the enduring powers of attorney in favour of Mr G came into effect.

[4] Five months later in May 2014, Mrs RC was assessed by another geriatrician, Dr VJ, who considered that Mrs RC’s cognition had improved sufficiently for her to return home and look after herself again.

[5] In September 2015, Mrs RC had another assessment by Dr WG, also a geriatrician, who observed that Mrs RC had been struggling to live at home. Dr WG recommended long-term residential care at BRH Rest Home (BRH). The enduring powers of attorney again came into effect.

[6] The following month, on 22 November 2015, Mrs RC was introduced to Mr YS by Mr G’s former wife, Ms MF, to see what assistance Mr YS could provide for Mrs RC to challenge Dr WG’s assessment so she could manage her affairs again.

[7] On 29 January 2016, having obtained legal aid for Mrs RC, Mr YS filed proceedings in the Family Court challenging that assessment, and seeking a review of certain of the activities of Mr G, as attorney.

Complaint

[8] Messrs G and D lodged a complaint with the New Zealand Law Society Complaints Service (NZLS) on 23 June 2017.

[9] They sought orders that Mr YS (a) hand over to them Mrs RC’s files relating to her applications to the Family Court, (b) be fined, and (c) pay compensation to them. They also sought (d) a publication order because Mr YS’ conduct was “wilful and reckless”.

[10] They rejected Mr YS description of them as “vexatious” complainants. They said they regarded Ms MF as an unreliable witness. They also rejected they were “denying” Mrs RC’s “rights”. They said they had previously taken Mrs RC “to a lawyer for independent advice”.

(1) Mental capacity

(a) Retainer

[11] Messrs G and D claimed that from 22 September 2015, the date of Dr WG’s assessment, Mrs RC did not have the mental capacity to contract.

[12] They claimed Mrs RC lacked mental capacity “from the start to the finish of Mr YS’ involvement” which they say is borne out in the 18 December 2016 assessment of Mrs RC by Dr EF, the geriatrician appointed by the Family Court.

(b) Family Court proceedings

[13] They referred to the Family Court rules which provide that if a person does not have mental capacity, then unless otherwise ordered by the Court, such a person may institute proceedings only by way of a litigation guardian.2

[14] They said Dr EF’s October 2016 report, taken alongside Dr WG’s September 2015 assessment, and the other clinical assessments comprised “overwhelming” medical evidence of Mrs RC’s mental incapacity. In such circumstances, they contended, Mr YS ought to have apologised to them for the “expenses and loss of income”, and “irreparable damage” done to their relationship with Mrs RC.

[15] Concerning Mr YS’ reference “to another capacity assessment”, they stated unless Mr YS had arranged for Mrs RC to have a “capacity assessment” they were “not aware of”, the only other assessment they could think of was Dr VJ’s May 2014 assessment.

(2) Uplifting files

(a) Mr G, as attorney

[16] Messrs G and D stated that when the Family Court proceedings ended, Mr YS was required by r 4.4.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the rules) to hand over Mrs RC’s files to Mr G as Mrs RC’s attorney.

[17] They stated that “records cannot be withheld on privacy grounds because they may contain information that is adverse to the [attorney], or ...may be used against the [attorney]”. In their view “nothing is confidential” to an attorney appointed under an enduring power of attorney.3

Response

[18] I refer to Mr YS’ response to the complaint in my later analysis.

2 Family Court Rules 2002, r 90E.

3 Meaning none of the donor’s information can be withheld from the attorney.

Standards Committee decision

[19] The Committee delivered its decision on 9 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.

(1) Mental capacity

(a) Retainer

[20] The Committee was satisfied that “it was appropriate for Mr YS to act” for Mrs RC “while the issue of [her] capacity” was determined. Mr YS “had met with Mrs RC on a number of occasions” and had obtained “evidence from other individuals which supported Mrs RC’s claim that she had capacity”. The Committee observed that while previously in care, Mrs RC had been reassessed as having “regained capacity.4

(b) Family Court proceedings

[21] In the Committee’s view, Mrs RC “was entitled to seek a new assessment of her capacity and to challenge” the enduring power of attorney, and for that purpose to have legal representation.

[22] The Committee noted that whilst assessment of capacity must be carried out by medical experts, not lawyers, “there will be no culpability if the lawyer is acting on the best evidence of capacity available”.

[23] The Committee concluded that Mr YS “acted appropriately in the termination of the retainer” having received the report from Dr EF, who had been appointed by the Family Court, to assess Mrs RC’s mental capacity.

(2) Request for Mrs RC’s files, records

(a) Mr G, as attorney

[24] The Committee accepted that “it was arguable” that Mr YS “was entitled to refuse to provide” Mrs RC’s files to Mr G when Mr G’s conduct, as Mrs RC’s attorney, was the subject of review before the Court.

4 A reference to Dr VJ's May 2014 assessment of Mrs RC.

(b) Messrs G and D as executors, trustees

[25] In the Committee’s view, because Mr YS had not acted for Mrs RC on the preparation of her will, in order for Messrs G and D to uplift Mrs RC’s files, it was appropriate for Mr YS “to seek proper confirmation of [their] authority as executors” such as grant of probate, or their affidavit or declaration that they had applied for probate.

[26] The Committee noted that Legal Aid Services had similarly required them to produce evidence of their entitlement to Mrs RC’s files and documents “in relation to the legal aid application” made by Mr YS when acting for Mrs RC.

• (c) Confidentiality
  

[27] The Committee “concurred” with Mr YS’ view that his duty of confidence was also owed to Ms MF, and Ms KN who had provided information to him “on a confidential basis”, and “who had been the subject of complaints” by Messrs G and D.5

(d) Timing

[28] The Committee observed that since Messrs G and D had made their complaint, Mr YS “had now released the bulk of the material from the files” to them which “was sufficient to address [their] request”.

[29] In the Committee’s view there had been no undue delay by Mr YS in responding to their request for Mrs RC’s files because (a) it had been appropriate for Mr YS to have taken a “cautious approach”, and (b) Mr YS “had responded promptly to [their] request setting out his position”.

Application for review

[30] Messrs G and D filed an application for review on 18 April 2018. They seek a reversal of the Committee’s decision, in particular the finding that there was a valid retainer. They restate their request for orders that Mr YS hand over to them Mrs RC’s files in his possession, pay them compensation, and pay costs.

[31] They state that the Committee did not consider a number of matters they regard as important including (a) three law firms, including Mrs RC’s existing lawyer who “knew” Mrs RC “well”, and whom Mrs RC “liked and trusted” had declined to act for Mrs RC on the matter, (b) Dr EF’s statement in his December 2016 assessment that Mrs RC “was not even aware” of “anything” about the Court proceedings, (c) the Court’s observation

5 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 8.8.

at the first hearing that the proceedings “would automatically fall over” if Mrs RC did not have “the capacity to give instructions, or bring or maintain the proceedings”, and (d) whether Mrs RC ought to have been independently advised.

(1) Mental capacity

[32] Messrs G and D repeat that because Mrs RC lacked mental capacity she could not instruct Mr YS to act for her, and therefore Mr YS’ “retainer was invalid”.

[33] They say the questions that need to be asked are (a) what evidence was available to Mr YS about Mrs RC’s capacity at that time, and (b) did Mr YS “know” about that.

[34] They say that “Mr YS knew on ... 21 November 2015, just prior to his involvement”, about Dr WG’s September 2015 assessment which included her recommendation of “D3 secure dementia level care” for Mrs RC, and similar assessments by “the NASC and the clinicians”.

[35] They say “the best evidence” was the medical opinion that was available “over the three month period immediately prior” to Mr YS’ “first meeting” with Mrs RC supported by the views family and friends who knew Mrs RC.

[36] They cast doubt on both the relevance and reliability of the views of Ms MF, Ms KN, and Ms LT, none of whom were medically qualified to assess mental capacity.6 They contend that the Committee’s acknowledgement that Mr YS placed reliance on these people was “a breach of natural justice” by the Committee.

[37] They contend that Dr VJ’s June 2014 assessment was, in effect, overly optimistic about Mrs RC’s mental capacity as borne out by later assessments. They say Mrs RC was only able to live at home at that time because of support from Mr G.

[38] Whilst they accept that Mrs RC “was entitled to seek a new assessment and to challenge” the enduring powers of attorney that were in place, the Committee was “wrong” in reaching the decision it did. In doing so the Committee “conveniently failed to discuss the issues raised” by them including the need for Mrs RC’s proceedings to have been issued in the name of a litigation guardian.

(3) Request to uplift files

[39] Messrs G and D claim that “despite asking” Mr YS, he did not provide them with “a list of documents on [his] file”. They say this handicapped them when making

6 Ms KN was a close friend of Mrs RC; Ms LT was a Health and Disability advocate.

submissions to the Committee because they did not know Mr YS’ “grounds on which all or part of [a] document should be withheld”.

(a) Mr G, as attorney

[40] They contend that although the Committee stated it was “arguable” that Mr YS was entitled to refuse to provide the files to Mr G, whose conduct as an attorney was the subject of review in Mrs RC’s proceedings, equally, the validity of Mr YS’ retainer, and consequently his right “to have those files in the first place” were in question.

(b) Information from Ms MF, and Ms KN

[41] They dispute that information relating to a third party, who if called as a witness would have been cross-examined, is sufficient reason for Mr YS to claim confidentiality of such person’s information. They say the Committee did not discuss Mr YS’ reasons for “withhold[ing] the documents” and therefore could not conclude it was “appropriate” for him to do so.

• (c) Messrs G and D as executors, trustees
  

[42] They say “as the persons looking after [Mrs RC’s] legal affairs”, as the executors and trustees of Mrs RC’s will they “had an equal or better right” to the documents than Mr G as Mrs RC’s attorney.

(d) Timing

[43] They deny Mr YS was prompt in responding to their request for Mrs RC’s files. They point to Mrs RC having died on 10 September 2017, and the proceedings having ended in January 2017, yet it was not until November 2017 when Mr YS provided “some documents”.

[44] They say Mr YS “told [them] to stop emailing him”, and Mr G’s lawyer had sent a copy of Mrs RC’s will to Mr YS. In “the end” however, they say Mr YS “provided parts of the file without any proof whatsoever”.7

(4) Other issues

[45] Messrs G and D raise related issues including the necessity for, and the prospects of success of the proceedings. They question both Mr YS’ motives for acting for Mrs RC, and his independence.

7 Part of one, out of six large folders.

Response

[46] Mr YS filed his response with this Office on 2 May 2018.

(1) Mental capacity

(a) Retainer

[47] Mr YS submits it was for the Family Court, not him to assess Mrs RC’s competency “to manage her own affairs”. He says his duty was to follow Mrs RC’s instructions “to challenge” Dr WG’s September 2015 assessment that Mrs RC was not able to manage her own affairs.

[48] He says Ms KN, one of Mrs RC’s friends, was a regular visitor to see Mrs RC, as was Ms MF. He says Ms LT, the Health and Disability advocate “appeared to indicate by [implication] that Mrs RC did have capacity”.

[49] He says his professional duties required that he “be available to the public and not without good cause ... refuse instructions ... within the reserved areas of work”. He says his practice areas include family law and therefore he “did not have good reason to refuse to act”. He says Mr G had “refused to sanction any expenditure at all” on legal representation. He submits there was a valid retainer which “did not cost Mrs RC one cent” because she had legal aid.

[50] Whilst he “think[s] that [he] was aware” Mrs RC’s lawyer had declined to act, he submits it was up to him to decide whether to act “based on [his] own judgement”. He submits Mrs RC “had a legal right to challenge the key assessment that she was unable to manage her affairs”, particularly since “the penultimate clinical assessment ... indicated she was competent”.8

(b) Family Court proceedings

[51] He submits the litigation guardian aspect of Messrs G and D’s review application was not included in their complaint and therefore cannot be considered on review.

[52] Nonetheless, he says it was not until “the case was virtually at an end” that Messrs G and D raised this issue which Mr G’s lawyer had not previously mentioned. He says there had been no objection by the Family Court registry, or the Family Court Judge, to his proceedings. He says if a litigation guardian had been required then he “would have got one” to ensure that Mrs RC was represented.

8 Reference to Dr VJ’s May 2014 assessment.

[53] In response to Messrs G and D’s accusation that his motives in acting for Mrs RC were “improper”, he suggests it was to “their financial advantage” if Mrs RC was not competent to “alter her will”, or as she later wished to do, “seek to dismantle the trust

... she had set up some years earlier” to benefit Messrs G and D and their children.

[54] He submits that the Committee was correct in noting that Dr VJ had reassessed Mrs RC in June 2014 as being “competent to make decisions in relation to her personal care and welfare and property”.

(3) Request to uplift files

(a) Mr G, as attorney

[55] Mr YS submits Messrs G and D’s request for Mrs RC’s files had “nothing whatever to do with the best interests of Mrs RC” for whose benefit the enduring powers of attorney granted to Mr G had to be exercised.

[56] He contends it was open to him to decline their request because they “made it clear” they wanted the files to complain about him. In his view that was “not a proper purpose”.

[57] He says he acted for Mrs RC “solely in respect to the review of the attorney’s decisions” and provided them with “all the documents to which they were entitled” before “any legal obligation to do so”. He says he withheld documents they already had including Court documents, and those confidential to Mrs RC such as “notes of [his] meetings” with her.

(b) Messrs G and D as executors, trustees

[58] He submits that after Mrs RC died, the “legal position changed”.

[59] He says upon hearing that Legal Aid Services provided Messrs G and D with information after they had produced an affidavit he handed Mrs RC’s files to them “even without proven evidence of executorship”. He says by this time the “matter was becoming prolonged”, and he considered it “unlikely that any other parties were involved in Mrs RC’s estate”.

(4) Other issues

[60] Mr YS says he was independent and did not need to “consult yet another lawyer”.

Review on the papers

[61] 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.

[62] 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

[63] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:9

... 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.

[64] More recently, the High Court has described a review by this Office in the following way:10

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.

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

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

[65] 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 first, consider all of the available material afresh, including the Committee’s decision, and secondly, provide an independent opinion based on those materials.

Issues

[66] The issues for consideration on this review are:

• (a) What were Mr YS’ professional obligations and duties when requested to act for Mrs RC to challenge the September 2015 medical assessment of her, and to review certain of the actions of her attorney, Mr G? In particular:
  
  • (i) The duty of a lawyer to be available to the public and, not without good cause, refuse to accept instructions from a prospective client within the reserved areas of work.
    
  • (ii) Whether Mrs RC was able to provide Mr YS with instructions?
    
• (b) What were Mr YS’ professional duties when requested by Mr G as Mrs RC’s attorney, and later when requested by Messrs G and D as executors and trustees, to hand over Mrs RC’s files concerning her application to the Family Court?
  
• (c) Was there delay by Mr YS in responding to those requests?
  

Analysis

(1) Request to act, mental capacity — issue (a)

(a) Request to act

• (i) Available to the public
  

[67] Lawyers who practice in the reserved areas of work are required to be available to the public do so. Rule 4 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the rules), commonly known as the “cab-rank” rule, provides:

A lawyer as a professional person must be available to the public and must not, without good cause, refuse to accept instructions from any client or prospective

client for services within the reserved areas of work that are within the lawyer’s fields of practice.

[68] The client’s or prospective client’s instructions must also fall within the lawyer’s fields of practice. For that reason instructions that are not within the lawyer’s field of practice are included in r 4.1 as a ground to refuse instructions.

[69] The “reserved areas of work” relate to (a) giving legal advice in the context of proposed or actual New Zealand court or tribunal proceedings, (b) appearing as an advocate before a court or tribunal, (c) representing a person before any court or tribunal, or (d) in giving legal advice or carrying out any other action required of a lawyer under s 21F of the Property (Relationships) Act 1976 or the provision of any other enactment.11

(ii) Good cause to refuse instructions

[70] Rule 4.1 describes four circumstances that constitute good cause for a lawyer to refuse instructions:

good cause to refuse to accept instructions includes [1] a lack of available time,

[2] the instructions falling outside the lawyer’s normal field of practice, [3] instructions that could require the lawyer to breach any professional obligation, and [4] the unwillingness or inability of the prospective client to pay the normal fee of the lawyer for the relevant work.

[71] By including circumstances that qualify as “good cause”, the rule does not necessarily contain an exhaustive list of grounds. Instructions that “fall outside the lawyer’s normal field of practice” also constitute “good cause”.12

(b) Mental capability

• (i) Test for mental capacity
  

[72] The legal line between mental capacity and incapacity competency is generally a difficult one for lawyers, and often at times for doctors, to discern. This is particularly so in the case of a person whose health is in decline and whose mental condition may be fluctuating.

11 Lawyers and Conveyancers Act 2006, s 6.

12 See also Rules of Professional Conduct for Barristers and Solicitors (7th ed, New Zealand Law Society, Wellington, 2008) — r 1.02, commentary (1). Rules of Professional Conduct, which explained in a practical way that “Instructions for work, which is outside the field of competence of a practitioner, should be either declined or, with the consent of the client, referred to another practitioner”; and in commentary (2) that “the complexities of modern legal practice mean that a practitioner is unlikely to be competent in all fields of practice”, and that “a practitioner should not hesitate to explain to a client or a prospective client that the client needs the services of a practitioner more experienced in the appropriate fields of practice”.

[73] The starting point is the statutory presumption of competence in respect of both a person’s personal care and welfare, and to manage his or her own affairs in relation to his or her property.13

[74] In broad terms, where a person’s mental capacity is at issue such matters are properly determined by appropriate medical professionals, and ultimately the Courts.14 In that regard, the Courts have stated that the test of mental capability for a person who enters into a contract is “whether the person ... is able to understand the nature of the transaction when explained to him”.15

[75] A similar approach is taken when a person creates, or revokes, an enduring power of attorney under the Protection of Personal and Property Rights Act 1988 (PPPR Act).16 The Family Court has held that the test to create an enduring power of attorney is “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”.17
[76] Lawyers have duties of both disclosure of information to, and consultation with clients.18 In circumstances where a lawyer is aware that a client has 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”.19 For that purpose, the rules require that information be provided to a client “in a manner that is clear and not misleading given the identity and capabilities of a client and the nature of the information”.20

(ii) Enduring power of attorney — donor capacity

[77] If an enduring power of attorney does not have effect until the donor becomes mentally incapable, then “the attorney must not act ... unless a relevant health practitioner has certified, or the court has determined, that the donor is mentally incapable”.

13 Protection of Personal and Property Rights Act 1988, ss 5 and 24.

14 Part 1, Personal Rights; Part 3, Property Rights; Part 9, Enduring Powers of Attorney.

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

16 Protection of Personal and Property Rights Act, ss 94A and 106(1)(a), (ba).

17 Re “Tony” (1990) 5 NZFLR 609 (FC) at 621.

18 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules. rr 7 and 7.1.

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

20 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules, r 1.6.

[78] If the donor becomes mentally incapable:21

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.

[79] The PPPR Act contains provisions concerning the scope of an attorney’s powers to act.22

(iii) Family Court jurisdiction

[80] The Family Court has “exclusive jurisdiction in all matters under the PPPR [Act]”.23

[81] Concerning enduring powers of attorney, s 102(1) of the PPPR Act provides that the Court has jurisdiction “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”. 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

[82] Where the donor of an enduring power of attorney “has become mentally incapable”, under s 102(2), the Court has wide powers of inquiry including determining the meaning and effect, and modification of the scope of the enduring power of attorney, and management by the attorney.

[83] The Family Court also has power to review an attorney’s decisions. Persons who may apply to the Court under s 102 (or s 105) are those listed in s 103(1), or any other person with the leave of the Court. Such persons include “the donor of the enduring power of attorney”.25

(iv) Litigation guardian

[84] In circumstances where a donor makes such an application, the Family Court Rules 2002 provide that “[a]n incapacitated person must not take part in proceedings without a litigation guardian, unless the court otherwise orders”.26

21 Protection of Personal and Property Rights Act s 97(4) (and before 25 September 2008, s 96); s 97 also contains provisions concerning the scope of an attorney’s authority to act; s99D - medical certificate of incapacity.

22 Section 97(1)–(3).

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

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

24 Carrington v Carrington at [65]–[66].

25 Protection of Personal and Property Rights Act, ss 102A, 103.

26 Family Court Rules 2002, rr 89, 90E.

[85] The term “incapacitated person” is defined as:

a person who, by reason of physical, intellectual or mental impairment, whether temporary or permanent, is –

(a) not capable of understanding the issues on which his or her decision would be required as a litigant conducting proceedings; or

(b) unable to give sufficient instructions to issue, defend or compromise proceedings.

(c) Parties’ respective positions

[86] Messrs G and D claimed that Mrs RC did not have mental capacity to instruct Mr YS on 22 November 2015 to issue proceedings in the Family Court to (a) challenge Dr WG’s 22 September 2015 assessment of Mrs RC, and (b) review certain of Mr G’s activities carried out as Mrs RC’s attorney.

[87] Mr YS rejects that claim. He says he “would have refused” to act had he “felt that [Mrs RC] had an inadequate understanding of what was to be involved”. He says Mrs RC “was adamant that she felt that she was able to manage her affairs”.

(d) Discussion

[88] The central question concerning this aspect of Messrs G and D’s complaint is whether Mr YS discharged his professional obligations and duties when he accepted Mrs RC’s instructions to issue the proceedings. That necessarily includes the question whether Mrs RC was able to give those instructions.

[89] However, as I have noted earlier, and as Mr YS submits, ultimately that is a matter for the Family Court to determine, not a Standards Committee, or this Office on review.

[90] As I have also noted, the PPPR Act includes provision for a donor of an enduring power of attorney to apply to the Family Court for a determination whether or not the donor is mentally incapable, and to review any decision made by an attorney.

[91] Although, having met Mrs RC, Mr YS formed the view she “was not expressly interested in the exact legal nature” of the Family Court proceedings, he says she “wished to challenge the findings as to her competency”. He says the proceedings which were issued on 29 January 2016 were supported by affidavits from Ms MF, and Ms KN.

[92] He rejects the notion that Mrs RC was not aware of the Family Court proceedings which he says he discussed with her “numerous times”. He says Mrs RC “may very well have been reluctant to discuss” the proceedings with Messrs G and D

because as she “had made it extremely clear” to them, she “wished to challenge the findings as to her competency”.

[93] He describes his duty under r 4, to be available to the public to accept instructions in the “reserved areas of work” which, as noted earlier, includes litigation. In his mind, he says he “did not have a good reason to refuse to act”.

[94] Although not raised by Mr G’s lawyer, or by Messrs G and D until late in the proceedings, they also claim that Mrs RC was an “incapacitated person”, and therefore it was necessary that she be represented by a litigation guardian, as provided in the Family Court Rules. However, that question is also a matter for the Family Court.27

[95] Mr YS was aware of the September 2015 medical assessment. Having been introduced to Mrs RC he made his own enquiries and formed the view at that time that Mrs RC knew she wanted to manage her own affairs, and to challenge the assessment about her.

[96] In doing so he relied on his own experience in the practice of family law, as well as the support of Ms MF, and Ms KN who were close to Mrs RC, and knew her well. He acknowledges he is “not an expert in dementia”. He says he “kept careful notes”, of Mrs RC’s “conduct and demeanour” at meetings on five occasions between 22 November 2015 and 29 January 2016. It is also worthy of note that if Legal Aid Services had any misgivings about the proceedings, then it could be expected legal aid for Mrs RC would have been declined.

[97] The conclusion I have reached is that no issues of a professional nature adverse to Mr YS arise on this aspect of Messrs G and D’s complaint. It was for the Family Court, to whom Mrs RC looked to review her situation, to determine whether she was mentally capable or not. It presents as unfortunate that it was not until a year after Mr YS first interviewed Mrs RC that Dr EF, appointed by the Court, reassessed Mrs RC. By then, as both parties acknowledge, Mrs RC’s condition had deteriorated further.

(2) Request for files, duty of confidence — issues (b), (c)

(a) Duty of confidence

• (i) Duty
  

27 The definitions of “mentally incapable” in the PPPR Act, and “incapacitated person” in the Family Court Rules, are different.

[98] The fundamental obligations of lawyers include the obligation “to act in accordance with all fiduciary duties and duties of care owed to clients, and to protect the interests of clients”.28

[99] Consistent with that obligation r 8 requires that:29

A lawyer has a duty to protect and to hold in strict confidence all information concerning a client, the retainer, and the client’s business and affairs acquired in the course of the professional relationship

[100] The words “to protect and to hold” require positive action by lawyer to comply with the rule.30

[101] The duty of confidence is owed to “the client”. It encompasses “all information” concerning (a) the client, (b) the retainer, and (c) the client’s business and affairs “acquired in the course of a professional relationship”.31

[102] The English House of Lords has described the duty of confidence as:32

... unqualified. It is a duty to keep the information confidential, not merely to take all reasonable steps to do so. Moreover, it is not merely a duty not to communicate the information to a third party. It is a duty not to misuse it, that is to say, without the consent of the former client to make any use of it or cause any use to be made of it by others otherwise than for his benefit.

(ii) Scope

[103] The duty includes a lawyer’s knowledge about a client’s or former client’s (a) “personalities ... weaknesses, fears and reactions”; 33 and (b) “honesty or lack thereof ... reaction to crisis, pressure or tension ... attitude to litigation and settling cases and tactics”.34

(iii) Duration

28 Lawyers and Conveyancers Act 2006, s 4 (c), (d).

29 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 8; footnote 10 states that even though information which a lawyer acquires about his or her client, while acting for the client, is in the public domain, such information “will nevertheless be confidential information”

30 New Zealand Law Society "Practice Briefing: Protecting Clients' Personal Information" (June 2014) <www.lawsociety.org.nz>.

31 Required and permitted exceptions are set out in rr 8.2, 8.4 respectively and are mentioned below.

32 Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52; [1999] 2 AC 222 (HL) at 235 per Lord Millett — see also Susan Galzebrook “Conflicts of Interest: The New Zealand Perspective” (11 August 2006) Courts of New Zealand <www.courtsofnz.govt.nz>; McKaskell v Benseman [1989] NZHC 225; [1989] 3 NZLR 75 (HC) at 88; and GE Dal Pont Lawyers' Professional Responsibility (6th ed, Thomson Reuters, Sydney, 2017) at [10.15].

33 Black v Taylor [1993] 3 NZLR 403 (CA) at 408; see discussion in Webb, Dalziel and Cook, above n 19 at [8.5].

34 GBR Investment Ltd v Keung HC Christchurch CIV-2009-409-1486, 19 March 2010 at [65].

[104] The duty of confidence:35

commences from the time a person makes a disclosure to the lawyer in relation to a proposed retainer (whether or not a retainer eventuates) [and] continues indefinitely after the person concerned has ceased to be the lawyer’s client.

(iv) Client’s death – effect on duty

[105] Upon “the death of a client or former client, the right to confidentiality passes to the client’s personal representatives”.36

(v) Exceptions to the duty

[106] Disclosures which are required by the rules include where “the lawyer reasonably believes that disclosure is necessary to prevent a serious risk to the health or safety of any person”. A constraint on that exception is that the disclosure “must be only to an appropriate person and only to the extent reasonably necessary for the required purpose”.37

[107] Permitted disclosures to a third party of a client’s confidential information “relating to the business or affairs of a client” include where “it is necessary to protect the interests of the client in circumstances where, due to incapacity, the client is unable effectively to protect his or her own interests”. A permitted disclosure of information under this rule “should only be to the appropriate person or entity and only to the extent reasonably necessary for the permitted purpose”. For the purposes of this exception, “client includes a former client”.38

(b) Parties’ respective positions

• (i) Messrs G and D
  

[108] Messrs G and D claim that Mr YS did not hand over his files on conclusion of the Family Court proceedings when requested to do so by Mr G, as Mrs RC’s attorney.

[109] They say that following Mrs RC’s death on 10 September 2017, as executors and trustees of Mrs RC’s will, they were entitled to Mr YS’ files concerning Mrs RC’s application to the Family Court.

(ii) Mr YS

35 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules, r 8.1.

36 Rule 8.1.1

37 Rules 8.2(b), 8.3.

38 Rules 8.4(c), 8.5, 8.6.

[110] Mr YS distinguishes his correspondence with Mr G’s lawyer which is not confidential information, from information about Mrs RC, and her “family situation” which is confidential. He says information provided by Ms MF, Ms KN, and Ms LT is also confidential to Mrs RC pursuant to rr 8 and 8.1 referred to earlier.

• (c) Discussion
  

[111] Messrs G and D claim that they were entitled to Mr YS’ files, documents, and records when acting for Mrs RC in two capacities. First, Mr G as Mrs RC’s attorney, and secondly, Messrs G and D as executors and trustees of Mrs RC’s will.

• (i) Mr G, as attorney
  

[112] Messrs G and D contend that “nothing is confidential” to an attorney appointed under an enduring power of attorney. In other words, they claim that disclosure by the donor’s lawyer to an attorney of information confidential to the donor is an exception to the duty of confidence.

[113] However, as noted above, such circumstances are neither a required, nor a permitted exception to the duty.

[114] Only if disclosure of a client’s information held by a lawyer is “necessary to prevent a serious risk to the health and safety of any person” can the information be disclosed to a third party. And then, only to “the appropriate person or entity”, and “only to the extent reasonably necessary for the permitted purpose”.

[115] The paramount consideration for an attorney in respect of a property enduring power of 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 to manage his or her own affairs in relation to his or her property”. A similar approach is taken concerning a personal care and welfare enduring power of attorney.39

[116] Therefore, whilst, as Mr YS acknowledges, any of Mrs RC’s medical records could have been made available, his notes about Mrs RC and her family were, and remained subject to his duty of confidence.

[117] It is evident from Mr YS’ responses to both Messrs G and D’s complaint, and their review application, that they were already in possession of documents filed in the

39 Protection of Personal and Property Rights Act 1988, ss 97A, 98A.

Family Court. Those documents included Ms MF’s and Ms KN’s respective affidavits, and most likely, communications between Mr YS and Mr G’s lawyer at the time.

(ii) Messrs G and D as executors, trustees

[118] As noted, on a client’s death, the “right to confidentiality passes to the client’s personal representatives”.40 It is to be noted however, that the right to confidentiality is to be distinguished from an entitlement to the information protected by that right. In other words, on the death of a former client, the lawyer must continue to keep and hold information about the former client in confidence.

[119] Messrs G and D also claim to be entitled to Mrs RC’s files because they say they had taken over Mrs RC’s legal work. They rely on r 4.4.1 which provides, in effect, that when a client changes lawyers the client has “the right either in person or through the new lawyer” to the client’s files, documents and records.

[120] Whilst Messrs G and D, as executors and trustees, were and are entitled to those of Mrs RC’s files, documents and records that were not subject to Mr YS’ duty of confidence, they were not lawyers, and therefore in that sense r 4.4.1 does not apply to them. However, that is not to say that a lawyer who has received a request from the client to uplift files must not comply with that request within a reasonable time.

[121] Following Mrs RC’s death on 10 September 2017, Messrs G and D’s request to Mr YS to hand over Mrs RC’s files, documents and records appear to have been communicated to Mr YS through the Law Society. Apart from the email communications exchanged between the parties in January 2017, and Mr YS’ 11 December 2017 letter to Messrs G and D which accompanied information delivered to them that day, no other communications between the parties have been produced.

[122] Messrs G and D’s first request in their capacity as executor and trustees was made to the Law Society in their 25 September 2017 email. Mr YS says he had “no communication on file” from them at that time that probate had been granted to them, or other evidence that they were “entitled to act” as Mrs RC’s executors and trustees.

[123] In his emails to the Law Society on 13 September 2017, 2 October 2017, 6 October 2017, and 31 October 2017, Mr YS maintained that since Mrs RC’s death, Messrs G and D’s entitlement to Mrs RC’s files, documents and records derived from their capacity as executors and trustees.

40 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules, r 8.1.8.

[124] In his 31 October 2017 email, he noted he still did not have proof that Messrs G and D were Mrs RC’s executors and trustees. He invited them to direct their request in that capacity to him.

[125] However, he says he subsequently heard from Legal Aid Services that they had requested copies of Mr YS’ correspondence to Legal Aid Services. In doing so they informed Legal Aid Services that Mrs RC’s estate was small in value so that probate was not required to administer the estate. He says after discussions with Legal Aid Services “there appeared to be nothing of a confidential nature ...which would prevent release of information from that file”.41

[126] In summary, Mr YS sought from Messrs G and D their authority, as executors and trustees, to uplift Mrs RC’s files, documents and records. Mindful of his duty of confidence he consulted with Legal Aid Services to establish whether it was appropriate to release the information Messrs G and D had requested from Legal Aid Services.

[127] By 6 December 2017, desirous of “mov[ing] this matter on”, Mr YS says he had the correspondence file copied which represented “almost the entire content of the information” requested. On 11 December 2007, he had the information described in his letter of that date delivered to Messrs D and G.

[128] Soon afterwards, on 11 December 2017, Mr YS released to Messrs G and D “correspondence” from Mrs RC’s file, and “Revocation of Power of Attorney”. He explained that he had retained his court documents file because Messrs G and D “have all these documents”. Similarly, he said he had retained disclosure from Mr G’s lawyer at the time, “consisting of medical notes” and related material because Mr G would already have copies of that information. He said he had retained his Legal Aid file being “relevant to [his] contractual relationship with the Ministry of Justice”. He explained, in effect, that his “handwritten and typed notes of phone calls, attendances and interviews”, and information received from third parties were subject to his duty of confidence.

[129] Whilst it might be said that Mr YS could have provided copies of all information with the exception of that in respect of which he claimed was subject to his duty of confidence, I am reminded that the High Court has stated that whilst the rules are to be “applied as specifically as possible”,42 they “are also to be applied as sensibly and fairly as possible”.43

41 Mr YS says Legal Aid Services subsequently released that information on production of “an affidavit or declaration” as to Messrs G and D’s entitlement.

42 Q v Legal Complaints Review Officer [2012] NZHC 3082, [2013] NZAR 69 at [59].

43 Stewart v Legal Complaints Review Officer [2016] NZHC 916, [2016] NZAR 900 at [62].

[130] Following that approach, from my analysis of the information produced to this Office concerning this aspect of Messrs G and D’s complaint, I do not consider that any adverse professional issues arise for Mr YS whether concerning the documents he produced, or the time it took to do so.

(3) Other issues

[131] To the extent that Messrs G and D raise new issues in their application for review, this Office does not have jurisdiction to consider matters not put to and considered by the Committee.

[132] However, concerning Messrs G and D’s claim that Mr YS was not independent when he acted for Mrs RC, I note briefly that no evidence was produced by them to either the Committee or this Office that Mr YS had any interest in the matter of a type prohibited by the rules in chapter 5. Mr YS had not acted for Mrs RC before, and, as noted earlier, in the particular circumstances of this case he considered it his professional duty to do so.

Decision

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

Anonymised publication

[134] 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 absent of anything as might lead to their identification.

DATED this 30TH 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:

Mr G RC and Mr D RC, as the Applicants Mr YS, as the Respondent

Mr NQ as a Related Person [Area] Standards Committee [X] New Zealand Law Society Secretary for Justice