ET v NE [2019] NZLCRO 73 (23 May 2019)

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	LCRO 160/2016
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	ET Applicant
AND	NE _Respondent

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

[1] Mr ET has applied for a review of a decision by the [Area] Standards Committee [x] (the Committee) to take no further action in respect of his complaint concerning the conduct of the respondent, Mr NE.

[2] The complaint related to Mr NE’s representation of Mr ET in 2015 when he sought leave to appeal out of time his June 2010 conviction on a charge of driving with excess breath alcohol (EBA). Mr NE rendered one invoice for fees which had not yet been paid at the time this decision was made.

[3] Mr ET pleaded guilty to the EBA charge in the District Court at [City] on 29 June

2010 and applied for a discharge without conviction on the grounds that a conviction was likely to jeopardise his status as a fit and proper person to discharge commercial fishing

vessel inspection duties with Maritime New Zealand. At that time those duties comprised a significant proportion of Mr ET’s work.

[4] Mr ET’s application was declined. He was convicted, fined and disqualified from driving for 6 months.

[6] Subsequently, Mr ET’s business interests expanded to include work in Asia and involved Mr ET travelling to a number of Asian countries.

[7] On 30 November 2011 Mr ET obtained an APEC business travel card from Immigration New Zealand (INZ). The APEC card meant Mr ET did not have to apply for an entry visa every time he entered another country for business.

[8] The application form for the APEC card required Mr ET to disclose any convictions. Mr ET did not disclose his EBA conviction and obtained a card that remained in effect until November 2014.

[10] Mr ET used the APEC card to obtain entry to various countries then applied to renew his APEC card as its expiry approached in November 2014.

[12] Mr ET has maintained that it was only then that he realised that his EBA offence counted as a criminal conviction that he should have disclosed when he first applied for the APEC card.

[14] In late March 2015 Mr OC, on instructions from Mr ET, instructed Mr NE as counsel to pursue whatever means were available to set aside Mr ET’s conviction.

In terms of a retainer, I normally ask for $15,000 initially and that would cover attendances reviewing the file and the first steps of the process. Once I have a better idea of the work involved, I can give an estimate of costs going forward.

[16] However, Mr ET says Mr OC asked him to pay $10,000 into his trust account and he understood that was Mr NE’s fee.

[17] The advice Mr NE provided to Mr OC was that Mr ET could apply for leave to appeal out of time, and if successful, file a substantive appeal. Mr OC instructed Mr NE to proceed on that basis and the leave application was duly filed.

[18] Mr NE did not issue any interim invoices. However, having received all of the relevant materials, and with a comprehensive understanding of Mr ET’s instructions, Mr NE advised Mr OC by email on 4 September 2015 that his total fee for completing the retainer would be no more than $25,000, which included the initial $15,000 indicated on 9 April 2015.

[19] Correspondence was exchanged between Mr OC and Mr NE which included reference to payment arrangements Mr ET was said to have made with Mr OC.

[20] Mr NE appeared as counsel for Mr ET before Courtney J on [date] 2015 and argued the leave application.

[21] All of Mr NE’s dealings were with Mr OC as his instructing solicitor. There was no direct contact between Mr NE and Mr ET during the retainer, which concluded with Mr NE’s appearance on [date] 2015.

[23] Her Honour delivered a reserved decision dated [date] 2015 dismissing Mr ET’s application on the basis that, for various reasons, it was not in the interests of justice to grant him leave to appeal.

[25] Mr OC and Mr ET corresponded, and in December 2015 Mr ET made a complaint to the New Zealand Law Society (NZLS) about Mr NE’s fee and the service he had provided.

(a) did not pay sufficient attention to information that Mr ET considered relevant to his application;

(b) engaged an immigration barrister for an expert opinion which Mr ET says was inept;

(c) placed insufficient emphasis on the fact that Mr ET’s failure to disclose the conviction on the 2011 application had not attracted any immediate consequences when he appeared to advance Mr ET’s application for leave;

(e) demanded $25,000 shortly before the hearing although Mr OC had already paid him $5,000.

[27] The Committee delivered its decision on 24 June 2016 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.

(a) Whether Mr NE’s fees were fair and reasonable (rr 9 and 9.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care Rules) 2008 (the LCCCR)).

(b) Whether Mr NE had failed to act competently (r 3 of the LCCCR). [29] In reaching its decision about fees the Committee noted:

(b) the importance of the leave application to Mr ET, given his obligation to disclose criminal convictions on arrival in countries that he had visited and intended to visit;

(c) that Mr ET had previously misled border authorities by not disclosing his conviction in the past, and his past and present position could only be effectively remedied by a successful appeal.

(d) whatever the evidential contradictions about the amount of the fee, including whether that had been fixed at the outset at $10,000, when on

[30] In reaching its decision about Mr NE’s competence the Committee made reference to:

(a) the chronology Mr NE’s had provided, which supported his position that he had provided Mr ET with a comprehensive and competent service;

(b) Mr ET’s dilemma as to whether he would persist in making false declarations or would pursue the appeal process in the hope he could regularise his position;

(c) Mr ET being undeterred by Mr NE’s advice, via Mr OC, that the application for leave and the appeal would be difficult;

(d) Mr NE had signalled to Mr OC early that it would be necessary to obtain independent evidence regarding immigration, to ascertain whether the position as advanced by Mr ET was independently supportable;

[31] The Committee concluded by noting that the other issues Mr ET had raised did not raise professional standards issues and were not well supported by the evidence.

[32] Mr ET filed an application for review on 14 July 2016. He asked this Office to reverse the decision and direct a different Committee to reconsider and determine his

1 The email described the $15,000 as intended to cover “attendances reviewing the file and the first steps of the process” only.

complaint. Mr ET set out a series of rhetorical questions and attached six documents and a letter Mr OC had sent him dated 21 April 2016.

[33] Mr ET confirms he did not meet with Mr NE personally. [34] He says the decision:

(a) is wrong, superficial, based on an unreasonably limited view of the facts, and did not take into account all of the information he had provided; and

(b) did not address his “extortion” complaint, namely that Mr NE refused to appear if Mr ET did not pay more money before the leave hearing.

[35] Mr NE was invited to comment on the review application. He submits that the Committee had all relevant material before it, including his 3 March 2016 response to the original complaint. In that response he says he:

(a) had no direct dealings with Mr ET, only Mr OC, and he questioned the accuracy and adequacy of what was actually conveyed by Mr OC to Mr ET;

(b) advised Mr OC on a number of occasions that the biggest hurdle facing the leave application lay in Mr ET having made multiple false declarations after the APEC card had expired;

(c) pointed out to Mr OC that Mr ET had expressed the intention to abandon that practice in his affidavit, so his only hope of untroubled future travel lay in a successful appeal; and

(d) had not overlooked any of the information provided by Mr ET, and where he saw insufficiency he had pointed that out.

(b) it appears Mr OC applied the funds Mr ET had provided to his firm’s costs;

(c) he had never mentioned $10,000 in his communications with Mr OC. His first indication of fees was in his email to Mr OC dated 9 April 2015, in

which he confirmed his usual practice, which was to ask for $15,000 initially to review the file and initiate the process.

[37] Mr NE attached an email he had sent to Mr OC on 27 July 2015 asking what security Mr OC held in his trust account in respect of Mr ET’s matter, and Mr OC’s reply saying he had asked Mr ET to pay $10,000 into his trust account.

[38] Mr NE also referred to an email Mr OC had sent to Mr ET telling him that Mr NE had estimated his fee at a maximum of $10,000. Mr NE says that is not correct, he did not estimate his fee would be $10,000. Mr NE’s position is that he was not aware Mr OC had given Mr ET that misplaced expectation until considerably later on.

[39] Mr OC had provided an undertaking on his firm’s behalf that it was responsible

(c) his indication of an all-inclusive fee of $25,000 a week before the hearing was preceded by delays and difficulties with Mr ET’s affidavit for which he was not responsible; and

(d) with reference to him obtaining independent evidence from the immigration barrister, it had become apparent to him that although he had explained to Mr OC in May and August 2015 that would be necessary, Mr OC had not passed that information on to Mr ET.

It is difficult to predict outcomes in cases where the court is being asked to exercise a discretion. The problem of Mr ET making false declarations to conceal his conviction so he could travel was explained in his affidavit and the submissions. The potential for this issue to undermine Mr ET’s case was fully discussed by me with Mr OC. The end point however was that Mr ET really had no choice and needed to try and regularise his position. As already stated, he says as much in his affidavit. Mr ET obviously took a calculated risk by concealing his conviction and making false declarations to immigration authorities. He did this for months before taking legal advice. The court was simply unwilling to accept that his belated decision to do the right thing could overcome his decision to do, and continue to do, the wrong thing earlier.

To my knowledge, Mr ET never asked to speak to or meet with me at any time, even though he was clearly in New Zealand for part of the process. It is now apparent to me that there has been significant mis-communication because of this.

[43] Mr ET attributes all the communication difficulties to Mr NE and repeated his view that Mr NE misapprehended the length of time over which he had travelled without an APEC card, and the extent of the information required from him when he entered the countries he had visited over that time.

[44] Amongst the evidence available on review is a letter from Mr OC to Mr ET dated

21 April 2016. Mr OC referred to undue and belated pressure (characterised by Mr OC

[45] Mr OC said that $10,000 had been promoted as “the initial estimate of costs” and, apart from the $25,000, was the only sum Mr NE had ever mentioned. Mr OC did not construe the email of 9 April 2015 as a request to collect a retainer of $15,000 from Mr ET. Mr OC said in conclusion that:

... we (had) made it clear from the outset of instruction that you knew that the APEC card had been refused in or around 2011(sic), as a result of the drink- driving charge, and that from that time, you had continued to travel to China and other countries which required visas and declarations about the matter. At no stage until just before the hearing of the appeal, was it ever suggested the appeal might not be a good idea due to the issue of the false declarations following the APEC card declining (sic).

[46] 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 an 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. Further written comment was sought from the parties in the course of this review, and the responses have been considered. On the basis of the information now available I consider the review can be adequately determined in the absence of the parties.

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

... 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.

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

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

[49] Mr OC is not a party to this review and there is no evidence to suggest his conduct was the subject of a complaint by Mr ET. Reference to Mr OC is made only to complete the narrative, not because it is appropriate to express a view concerning his conduct, service or his fee.

[50] Mr ET’s complaint includes an implied criticism that Mr NE did not meet with him personally.

[52] Rule 14.4 is known as the intervention rule. That rule says that in most cases:

...a barrister sole must not accept instructions to act for another person other than from a person who holds a practising certificate as a barrister and solicitor.

[54] Mr OC was the holder of a practicing certificate as a barrister and solicitor. Mr NE accepted instructions to act for Mr ET from Mr OC in March 2015. Mr NE thereby complied with the intervention rule.

14.11 A barrister sole must keep his or her instructing lawyer reasonably informed of the progress of the brief. A barrister sole should normally seek the consent of the instructing lawyer before interviewing the client or witnesses.

[56] The rules affecting barristers sole changed part way through Mr NE’s retainer, with effect from 1 July 2015. Rule 14.11 became r 14.15.1, at which point the word “any” was inserted between “or” and “witness”.

[57] Based on the rules at all relevant times, Mr OC was Mr NE’s instructing lawyer and Mr NE was obliged to keep Mr OC, rather than Mr ET, reasonably informed of the progress of the brief. Although in practice barristers sole sometimes communicate directly with the instructing lawyer’s client, that is not always the case, and was not the case here. Mr NE says Mr ET did not suggest he wanted to meet with him and no such meeting occurred. Mr ET confirms he never met Mr NE.

[58] Mr NE should not be subject to criticism for adhering to r 14.11/14.15.1. The evidence available on review indicates Mr OC was responsible for taking instructions from Mr ET and drafting his affidavit. That is all consistent with Mr NE observing r 14.11/14.15.1.

[59] Mr NE advised Mr OC before he interviewed Ms IB, the immigration lawyer whose opinion was sought as an expert witness. That too is consistent with Mr NE observing r 14.11/14.15.1.

[60] There is no basis on which to advance the contention that Mr NE should have been in direct contact with Mr ET. There is no impropriety in Mr NE relying on the intervention rule or complying with r 14.11/14.15.1. It is clear from the evidence, including evidence from Mr ET, that is how Mr NE conducted himself.

A lawyer must upon request provide an estimate of fees and inform the client promptly if it becomes apparent that the fee estimate is likely to be exceeded.

[62] Mr OC asked Mr NE how much he should ask Mr ET to pay as a retainer. That is arguably not a request for an estimate. However, on the basis that it was a request for an estimate, Mr NE advised Mr OC on 9 April 2015 by email that he normally asked for a retainer of $15,000 to cover his attendances in “reviewing the file and the first steps of the process”. On the basis that was an estimate, it was, and was expressly said to be, only for part of the work. Mr NE explained that when he had a better idea of the work involved, he would be able to provide an estimate of costs going forward and that is what he subsequently did.

[63] By 9 April 2015 Mr OC and by extension Mr ET were aware that Mr NE’s normal retainer was $15,000 for reviewing Mr ET’s file and initiating the leave process. There is no indication that Mr NE was treating Mr ET’s matter as out of the ordinary in any way.

[64] It is difficult to see Mr NE’s email of 9 April 2015 as anything other than an indication that it would cost Mr ET, via Mr OC, a minimum of $15,000 for Mr NE to review the file and initiate the first steps in the leave process. At that stage Mr NE did not, and realistically could not, provide an estimate for anything he would do after the leave process was initiated. However, Mr NE’s email of 9 April 2015 was a clear indication that his final fee was likely to exceed $15,000. That is because there was always going to be more to completing the retainer than reviewing the file and initiating the process of applying for leave to appeal. At a minimum there would be at least one appearance, and more likely two.

2015 resulted in the court directing Mr ET to file supporting affidavits by 10 July 2015.

[66] On 2 June 2015, Mr NE asked Mr OC to provide him with a full background from

Mr ET for the purpose of preparing an appeal, followed up by a reminder on 7 July 2015.

[67] On 20 July 2015, after the timetabled date of 10 July had gone by, Mr NE followed up on his request for a full background and requested an update from Mr OC regarding Mr ET’s affidavit. Mr NE says Mr OC advised him he had been hospitalised, the matter was in hand and he would make a draft available to Mr NE the next day,

[68] Nearly a week later, on 27 July 2015, Mr NE received a draft affidavit. He understood from Mr OC that the further delay was a result of Mr ET having been overseas.

[69] In his letter to Mr NE of 27 July 2015, Mr OC referred to payment of $10,000 made by Mr ET to secure Mr NE’s fees. That was not what Mr NE had indicated to Mr OC in his email of 9 April 2015 and there is no other contemporaneous documentary evidence available on review of Mr NE having mentioned that figure. It is accepted that, as Mr NE says, he knew nothing of any mention of $10,000 before then.

[70] Mr NE asked Mr OC on 5 August 2015 whether Mr ET had paid in funds on account of fees and by the following day Mr OC had indicated to Mr NE that he had “secured $5,000 of the $10,000 retainer with the balance promised in 14 days or less”.

[72] Work progressed, with Mr OC and others providing Mr NE with further information. That further information enabled Mr NE to form a clearer idea of his overall fee for completing the retainer, ie. doing everything else that was not reviewing the file or initiating the leave process.

[73] On 31 August 2015, Mr NE sent Mr OC an email outlining his costs to date and anticipated appeal completion costs. Mr NE anticipated his “fee for all attendances (up to and including the hearing on 7 September 2015) will be approximately $25,000 including GST and disbursements”, describing that as the “amount that should be held in trust in advance of the hearing”. Mr NE offered as an alternative to accept a guarantee from Mr OC that his fees would be paid by the 20th of the month following invoice, a concession on his usual requirement for payment within seven days. Mr NE asked Mr OC to confirm the position.

[74] Mr NE says Mr OC told him on Tuesday 1 September 2015 that he would action his request.

[75] Although Mr OC and Mr ET communicated with one another, emails were not copied to Mr NE and he says he had heard nothing more from Mr OC by Friday

4 September 2015. With the hearing scheduled for the following Monday, 7 September

2015, Mr NE sent Mr OC an email. Mr NE asked Mr OC if he had paid the immigration barrister, Ms IB, and asked Mr OC to respond by 4 pm that day saying:

Thank you for your email of Tuesday. Given there has been no update, I require confirmation in writing that LOC will underwrite my fee of $25,000 if I am to appear at the appeal hearing on Monday 7 September 2015. I do not know what funds are currently held in trust but I need to know that my fee will be paid. I am

prepared to wait until the end of this month, as opposed to my usual 7 days from the date of invoice.

[76] Mr OC replied confirming Ms IB’s invoice had been paid and that his firm:

Will meet your fees – [Mr ET] has asked for an additional month given the significant increase from initial estimate so we would ask for that extra month by way of our guarantee obligation.

[77] Mr NE agreed, appeared for Mr ET then sent a reporting letter and invoice addressed to Mr OC’s firm dated 9 September 2015 for his fee of $20,800 (excluding GST and disbursements).

[78] On 22 September 2015, Mr OC passed Mr NE’s reporting letter and invoice on to Mr ET, who almost immediately expressed his dissatisfaction with Mr NE’s report, saying Mr NE knew:

exactly the issues faced with me falsifying documents in order to get a visa through and now saying it is an issue?

There are quite a few things I am not too happy with this matter. We shall discuss and work through this anyhow.

[79] On 28 September 2015, Mr NE sent through Courtney J’s decision and a short report to Mr OC who passed that on to Mr ET together with his firm’s invoice and a statement. Although Ms IB’s fee as an “agent” was included as a disbursement in Mr OC’s invoice, no mention was made of Mr NE’s fees in the invoice or the statement Mr OC sent to Mr ET.

I finally opened the decision and as I said earlier there is and was very little hope given the submission on a very weak argument NE had put forward.

Now comes the next stage of his ridiculously staged invoice and the settlement for what I can see as a rather poorly engineered job.

Perhaps the best way forward from here is to meet up and go over this charade. I’m pretty well buggered until Friday at this stage, conversely we can look at early next week?

11 November 2015 notifying him that Mr ET had sought legal advice elsewhere and would make a complaint to NZLS. Mr OC outlined the basis of the complaint was that Mr NE had:

(c) altered his advice on the prospects of success from his initially optimistic advice to his more cautious advice of 31 August 2015 “which gave the clear impression that the appeal was unlikely to succeed”.

[82] Mr NE disputed the position as set out by Mr OC on Mr ET’s behalf and set out

[83] The proposition that Mr NE provided an original estimate of $10,000 is unsupported by any contemporaneous documentary evidence. The evidence is that Mr NE indicated on 9 April 2015 that his initial retainer would be $15,000 and was highly likely to be more.

[84] If Mr ET had agreed to pay $10,000, there is no documentary evidence that he made that agreement with Mr NE. The contention is insufficiently supported and cannot be sustained on the evidence available on review.

[85] Mr ET’s position is that Mr NE asserted undue pressure by demanding a fee of

$25,000 on 4 September 2015. That position does not take account of the fact that Mr NE advised Mr OC by email on 31 August 2015 that his fee would be $25,000. While it is accepted that on 4 September 2015 Mr ET may have felt the pressure of agreeing to accept the reality of Mr NE’s fee, the allegation that Mr NE suddenly asserted that pressure cannot be sustained on the evidence available on review.

[86] Mr ET’s understanding was that Mr NE had initially given an optimistic indication of his prospects of success but later adjusted that to the point where Mr ET says Mr NE gave “the clear impression that the appeal was unlikely to succeed”.

[87] As all of Mr NE’s communications were filtered through Mr OC, it follows that Mr ET’s understandings were not a direct result of anything Mr NE personally had told him.

[88] Mr NE’s earliest indication was that the best solution to address Mr ET’s position was to apply for leave and, if that was successful, to pursue an appeal. Mr NE’s view was conditional from the start.

[89] Mr ET’s emails to Mr OC after the decision was released are illuminating. In his emails Mr ET expresses the view that Mr NE knew exactly the issues Mr ET faced having falsified documents in order to get a visa through. For some reason Mr ET seems to think that Mr NE could fix the fact that Mr ET had falsified documents. Mr NE could not rewrite history. The best Mr NE could do was to advance the strongest argument that was available on the facts. To do otherwise would be misleading. Mr ET’s criticism that Mr NE advanced “a very weak argument” is therefore rejected.

[90] Given the fact that, by his own admission, Mr ET had been making false statements to get visas, even the best option could not equate to an option that was highly likely to succeed.

[91] Add to that the fact that Mr NE did not have all of the evidence available to him until fairly late in the piece. In this case, Mr NE was in receipt of evidence from Mr ET and Ms IB. As with any application, the outcome relies to a significant extent on the evidence. It is difficult to see how Mr NE could reliably form an informed view on outcome without having all of the relevant evidence available to him.

[92] Further, optimism about outcome has to be tempered with the fact that the leave application called for an exercise of discretion by the Court and could never have been predicted with a high degree of certainty.

[93] By 31 August 2015, Mr NE would have been able to form a somewhat more realistic view of the prospects of succeeding, but it takes time to navigate an acceptable path around the relevant fact that Mr ET had made more than one false declaration. On Mr ET’s evidence Mr NE conveyed that view, via Mr OC, and gave “the clear impression that the appeal was unlikely to succeed”.

[94] What Mr ET appears to be saying is that he started from the position that it was worth a try and had moved to the position before the hearing that it probably was not even worth that. His negativity, as Mr OC described it, was vindicated once Mr ET had read Courtney J’s decision.

[95] Even if it were accepted that Mr NE had changed his advice on prospects of success once he had all the materials available to him, that would be entirely proper and unremarkable. Lawyers are obliged by r 5 to be independent in providing services, such as legal advice on prospects of success, to clients.

[96] In the circumstances, no professional standards issue can arise for Mr NE from this aspect of Mr ET’s complaint, even if it is accepted that Mr NE’s view of Mr ET’s legal position changed along the way.

[98] Mr ET said that Mr NE did not pay sufficient attention to information that Mr ET considered relevant to his application and placed insufficient emphasis on the fact that Mr ET’s failure to disclose the conviction on the 2011 application had not attracted any immediate consequences when he appeared to advance Mr ET’s application for leave. These aspects of Mr ET’s complaint effectively represent a difference of opinion over how Mr NE should have done his job. It is not for this Office to direct the way that lawyers advance applications unless professional standards are breached. On the evidence, no standards issue arises from these concerns.

[99] Ms IB was engaged to provide independent evidence on immigration matters. Mr ET considered Ms IB was inept. Ms IB’s obligation as an independent expert was to express her opinion. Her view did not have to accord with Mr ET’s. No comment adverse to Ms IB can, should be, or is made in the course of this review.

[100] Mr ET’s complaint is grounded on two related contentions, namely that Mr NE charged too much and did not secure the outcome Mr ET wanted. The latter type of arrangement is known as a contingency fee. There are special rules that apply to contingency fees. There is no evidence that supports the contention that Mr NE acted on a contingency basis.

[101] As to the former, the rules did not oblige Mr NE to supply information about the basis on which he would charge when Mr OC engaged him. Complaint cannot be sustained on the basis that no such information is available, when no such information was required by the Rules.

[102] The next question is whether Mr NE charged a fair and reasonable fee for the services he provided.

[103] Mr NE’s fees are not based solely on the time he spent attending to Mr OC’s instructions. Mr NE’s hourly rate was $800, his junior’s $400. Based on a multiplier of time spent, those hourly rates do not result in the fee Mr NE charged in his invoice.

[105] Those factors include the importance of the matter to the client. It is appropriate for Mr NE to have recognised in his fee how important this matter was to Mr ET. Mr ET had expanded his business interests overseas after his EBA conviction. That meant he had put himself in a position of having to travel, which presented him with a problem, whether he had considered it or not before making commitments to others.

[106] As I understand the position, by making one false statement to obtain the APEC card, Mr ET had effectively made other false statements each time he relied on the APEC card to enter another country that required him to disclose any criminal convictions. Historically, that was an unenviable position for him to have been in. For the future, once Mr ET was told he could not renew his APEC card because of the EBA conviction, if challenged, he could no longer rely on ignorance to excuse previous falsehoods.

[107] It is understood that Mr ET’s business involved him travelling often and extensively which made the risk of challenge a real consideration. He could have faced significant penalties if he did not address the position, and risked being refused entry and therefore being unable to do business, if he had disclosed it.

[108] For Mr ET, urgency was another consideration because, having been confronted with the difficulty of his position, if he wanted to continue in his overseas business, he needed to regularise his travel arrangement as soon as possible, continue to make false declarations in the hope he would not be found out or abandon the idea of doing business overseas. It is understood Mr ET placed a high value on continuing to do business overseas. Mr ET had expressed the intention to be honest in future. From his perspective, resolving his situation so he could carry on in business overseas can only have been urgent.

[109] While not factually complex, it is relevant to note that expert evidence from Ms IB was required to explain to the Court what the legal position was understood to be in the countries Mr ET wanted entry to. Mr NE would have had to understand the legal position to advance Mr ET’s case, which takes time and costs money.

[110] Mr NE is a QC. He is experienced. He has the usual reputation associated with appointment as a QC and can reasonably be described as a leader in the profession. It can reasonably be assumed Mr NE’s experience, reputation and ability were factors that were of significance to Mr ET in Mr OC instructing Mr NE to argue Mr ET’s case.

[111] The estimate of $15,000 was clearly recorded as being only to cover the early steps in the retainer. Completing it was always going to cost more. Mr NE estimated

[112] Although there is no formula for calculating a fair and reasonable fee, it is not possible to say with sufficient certainty, based on the applicable r 9.1 factors, and on the facts of the retainer, that Mr NE’s fee was unfair or unreasonable.

[113] All of the available materials have been considered on review. There is no basis on which to be satisfied that Mr NE’s fee was in some way unfair or unreasonable or that his conduct was some other way unsatisfactory. There is no basis on which to depart from the Committee’s decision. That is confirmed.

[114] Pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2008 the decision of the Standards Committee is confirmed.

In accordance with s 213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:

Mr NE as the Respondent [Area] Standards Committee [x] The New Zealand Law Society

New Zealand Legal Complaints Review Officer

ET v NE [2019] NZLCRO 73 (23 May 2019)