Lukas v ZE [2020] NZLCRO 10 (30 January 2020)

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	[2020] NZLCRO 10 LCRO 38/2019 LCRO 151/2019
CONCERNING	applications for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING	determinations of [Area] Standards Committee [X]
BETWEEN	YURI LUKAS Applicant
AND	ZE Respondent

The names and identifying details of all but the applicant in this decision have been changed.

n a determination dated 18 February 2019, [Area] Standards Committee [X] made a finding of unsatisfactory conduct against Mr Lukas and made the following orders:1

r Lukas pay compensation to Mrs ZE of $930.00, being the cost of the replacement medical examinations, pursuant to s 156(1)(d);

r Lukas refund to Mrs ZE all unrefunded fees paid by her in relation to her work visa and family’s visa applications pursuant to s 156(g);

r Lukas pay to the New Zealand Law Society a fine of $1,500.00 pursuant to s 156(1)(i); and

MMr Lukas pay to the New Zealand Law Society costs of $1,200.00 pursuant to s 156(1)(n).

he Committee also formed a preliminary view that Mr Lukas’ name should be published.

aving considered submissions made by both parties in that regard, the Committee determined that it was necessary and/or desirable in the public interest:2

... that the identity of Mr Lukas and a summary of the facts, outcome and orders of the matter, but not any details that might lead to the identification of any of the other parties involved, are to be published as the New Zealand Law Society deems appropriate.

rs ZE wished to emigrate from [Country A] to New Zealand with her husband and their children. Whilst residing in [Country A], she instructed Mr Lukas to act on their behalf to apply for a work visa for herself and appropriate visas for her husband and children.

rs ZE understood that she had been offered employment by a home-based [redacted] company3 and had been referred to Mr Lukas by her potential employer.

rs ZE advises that, on 4 October 2016, Mr Lukas sent directly to her, terms of engagement with AB, a firm of solicitors. Mrs ZE signed the terms of engagement on the same date and returned them to Mr Lukas. It would seem that the firm of solicitors played no part in this process.

wo days later, on 6 October 2016, Mr Lukas rendered an invoice on the letterhead of his employer (HN) for the work to be undertaken. The invoice was addressed in the following manner:

he invoice included Mr HN’s bank details and Mrs ZE made payment directly into that account.

he amount due, as recorded on the invoice, was “3450.00$”. In her letter of complaint, Mrs ZE advised that she had paid the sum of $4,880 to Mr HN and it would appear that she believed the invoice was rendered in USD and had converted the invoice amount to NZD.

n an email on 4 October 2016, Mr Lukas had advised Mrs ZE what was needed for her to obtain a visa. He said:

Do you have these documents? If not I can request them from us according to your instructions.

You also need to sign the terms of engagement which I have attached to the letter.

Write as you prefer to make a payment. Do you have a credit card? Yours faithfully,

[BG] is interested me, but I have not been on an interview with her. I told her that she was ready to come specifically to the interview.

Before my arrival, I would like to ask you to find out whether the future [BY]-Job Offer NZ fits the requirements Immigration Service – in relation to the payment of volume and rate, published rate, and all the necessary criteria.

4 Mr Lukas’ fees were subsequently increased because he was instructed to apply for visas for Mrs ZE’s husband and their children.

You do not need to come – I can make you a visa here. You will not be able to work until you are given a visa. You arrive as soon as you will be given a visa.

Thank you for the instructions to apply for your work visa and work visa for your husband student visas for kids.

I understand you have given me an authorisation to approach your prospective employer and request all the documents from them.

I just wanted to check if you signed any documents with them already or received any documents from them.

n 11 October 2016, Mrs ZE advised Mr Lukas via email that she had not received “any documents from the employer” and that the employer had “referred me to you for consultation toward working visa”.

he visa applications were not lodged by Mr Lukas with Immigration New Zealand and ultimately, by April 2017, Mrs ZE’s husband had secured employment in New Zealand, and they withdrew their instructions from Mr Lukas.

r Lukas did not carry out the work that she instructed him to do, namely to lodge visa applications for herself, her husband and their family;

hether Mr Lukas breached his obligation under rule 3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) to act competently and in a timely manner consistent with the terms of the retainer and the duty to take reasonable care;

hether Mr Lukas breached his obligation under rule 9 of the Rules not to charge a fee that is more than fair or reasonable;

reached his obligation under rule 11 of the Rules to administer his practice in a manner that ensures duties [to] existing clients are adhered to, and the reputation of the legal profession is preserved;

hether Mr Lukas’ conduct in respect of above matters, individually or collectively, amounted to unsatisfactory conduct within the meaning of ss 12(a), 12(b) and/or 12(c) of the Lawyers and Conveyancers Act 2006 (the Act);

he appropriate orders the Committee may make under s 156 of the Act if there is a finding of unsatisfactory conduct; and/or

he possibility of publication of the determination and Mr Lukas’ identity as directed by the Committee or a summary thereof pursuant to s 142(2) of the Act.

r Lukas’ fees were more than fair and reasonable for the work carried out; and

r Lukas had breached his duties to Mrs ZE as set out in r 11 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) and had not ensured the reputation of the legal profession was preserved.

he Committee determined that Mr Lukas’ conduct was in breach of ss 12(a) and (b) of the Lawyers and Conveyancers Act 2006 (the Act). However, given that breaches of the Rules had been identified, Mr Lukas’ conduct was also in breach of s 12(c) of the Act.

aving made findings of unsatisfactory conduct against Mr Lukas, the Committee made the orders set out in [1] above.

aving referred the issue of publication to the Board of the New Zealand Law Society,6 the Committee made the following determination:7

The Committee considered it necessary and/or desirable in the public interest to publish its determination in this matter, including the identity of Mr Lukas. The Committee had the prior approval of the Board to direct publication. Accordingly, the Committee directed, pursuant to section 142(2) of the Act, that the identity of Mr Lukas and a summary of the facts, outcome and orders of the matter, but not any details that might lead to the identification of any of the other parties involved, are to be published as the New Zealand Law Society deems appropriate.

r Lukas’ application for review of the findings determination was accompanied by brief submissions. He asked for the review to be “based on the facts, not on the complaint itself”.

I was approached by Mrs. ZE in 2016. She wanted to apply for a work visa based on a job offer from a New Zealand company. She also wanted me to apply for a visa for her husband and 2 children (student visas). There were 4 applications in total. The visa preparation process took place from October 2016 until March 2017. Mrs. ZE failed to obtain a job offer and her applications were not lodged. Mrs ZE decided to give up the job she tried to get the job offer for, as Mrs. ZE’s husband obtained a job offer. He applied for his visa via a different immigration adviser after Mrs ZE’s termination of my retainer in March 2017.

Mrs. ZE during the termination process admitted that I had spent a lot of time on her documents, even though it did not work out. She approached me and provided me with a verbal agreement. I returned all the INZ fees and can keep all legal fees paid. I accepted this offer and made a refund of INZ fees.

r Lukas subsequently made further submissions in support of his application for review based largely on the fact that Mrs ZE did not have a formal offer of employment in New Zealand and could not therefore fulfil that requirement of her visa application.

6 Pursuant to reg 30, Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008.

e advises that he “had an impression from the Determination that Mrs ZE convinced the members that [he] was involved in her employment negotiations with [redacated]”.

to make it very clear that Mrs ZE did all the negotiations by herself. [He] was only supposed to check if her job offer was sufficient to apply for a visa. [He] had never received a job offer from Mrs ZE or [redacted] as there were none.

r Lukas included extensive material issued by Immigration New Zealand in relation to work visas “to make it clear for the officer what is the job offer under Immigration instructions in New Zealand”.

he essence of his submissions is that his instructions did not extend to assisting Mrs ZE with regard to her employment and that it was her responsibility to provide him with evidence of her employment in New Zealand.

My terms of engagements had at the time a detailed description of the complaint process. Mrs ZE did not follow the process and did not give me an opportunity to address this issue. She approached my Instructing Solicitor and demanded the refund. I do not see this as fair as I spent significantly more time on her application that it was originality anticipated. I also spend time on her children’s applications and her husband application. I spend a lot of time communicating with her (more than 30 hours on the phone only).

I did not charge her extra money as I genuinely tried to help her with her visa application; however, I was not able to.

n applicant only hearing with Mr Lukas was initially scheduled for 17 October 2019 but adjourned following an application by him.

he hearing was rescheduled to 23 October 2019 but again adjourned following another application by Mr Lukas.

his review has now been completed on the papers and to ensure there is a full record of the reasons for this, a copy of the Minute issued on 30 October 2019 is attached to this decision.

n each application for review, Mr Lukas requests that the review be made “based on facts, not on the complaint itself”. Mr Lukas seeks reversal of the finding of unsatisfactory conduct and reversal of all orders.

matter that requires immediate comment is that it is apparent from the foreign currency transfer form provided by Mrs ZE that she mistakenly assumed the invoice issued by Mr Lukas was for US$3,450. In her letter of complaint, she advises that this amounted to NZ$4,880 and this was the amount remitted by her to the account number provided.

otwithstanding that this was clearly an error on her part, it does not seem that either Mr HN or Mr Lukas advised her of her mistake and no refund was made.

his does not form part of Mrs ZE’s complaint but adds to the concerns arising out of the fact that the payment was made direct to Mr HN and that the instructing solicitor’s firm (AB) played no part at all in the relationship between Mrs ZE and Mr Lukas as required by rule 14.4 of the Conduct and Client Care Rules.

or this reason, I direct the Standards Committee pursuant to s 209(1) of the Act to investigate and consider the relationship between AB and Mr HN and Mr Lukas as specified in the orders made hereunder.

n his initial submissions, Mr Lukas asserts a verbal agreement by Mrs ZE that he could keep the legal fees invoiced. The invoice was for NZ$3,450. Mrs ZE says she paid NZ$4,880.

here is no documentary evidence of the amount paid which no doubt will be clarified by the Committee when investigating this matter further as directed.

rs ZE has not responded directly to the assertion by Mr Lukas that she had agreed the fees could be retained. However, her email to Mr Lukas on 12 April 2017 reads:

We have decided not to proceed with any of visas. My husband was offered his employer’s manager lawyer and he excepted. So we will not continue hire your services. We would like to arrange meeting with you to collect all our documents.

Also we’d like to ask you to calculate our money refund minus your working hours, of course.

ection 132 of the Lawyers and Conveyancers Act provides any person with statutory authority to complain. Mrs ZE exercised her right to complain and the Committee determined that any time expended by Mr Lukas had no value to her. He was ordered to cancel his fee.

r Lukas makes much of the fact that Mrs ZE could only apply for a work visa if she had an offer of employment in New Zealand, and that she did not.

e has gone to the extraordinary length of providing an email letter from “one of the owners of the business”8 which Mrs ZE had made contact with to seek employment. This letter confirms that no offer of employment had been made.9

have carefully perused all of the material provided by Mr Lukas and although much of the correspondence is in a foreign language,10 he has not provided any evidence where it can be seen that he has clearly advised Mrs ZE that she must have an offer of employment before she could apply for a visa.

nstead, the evidence indicates that Mr Lukas undertook, and accepted instructions, to resolve any problems in this regard himself.

r Lukas rendered his invoice for his full fee to Mrs ZE on 6 October 2016 which was immediately paid by her. If the issue of an offer of employment was fundamental to obtaining a work visa, it would have been expected that Mr Lukas would have withheld his invoice until the offer of employment was received.

Thank you for the instructions to apply for your work visa and work visa for your husband student visas for kids.

I understand you have given me an authorisation to approach your prospective employer and request all the documents from them.

9 This letter is somewhat at odds with the email 23 March 2017 seemingly from the same person ([BG]) which reads:- Dear ZE – Thanks for coming over for the interview. We were pleased to meet you. Your application is successful and [redacted] is happy to give you the job. We would like you to come over again and discuss further details of your employment with us ...

I just wanted to check if you signed any documents with them already or received any documents from them.

This gives every indication that Mr Lukas was able to resolve any issues himself, having been provided by Mrs ZE with appropriate authority to do so.

n the email of 4 October 2016 in which Mr Lukas sets out what is required to obtain a visa (which included an employment contract) he said:

Do you have these documents? If not I can request them from us according to your instructions.

It is not clear who “us” refers to, but the indication that Mr Lukas could attend to any issues is clear.

n response to Mrs ZE’s advice that she had not had an interview for the position, Mr Lukas said:

he combination of these emails (and others) gives the clear impression that Mrs ZE did not need to come to New Zealand for a job interview and that Mr Lukas had all the skills, authorisation and information to make the necessary arrangements for her.

ith his submissions on review, Mr Lukas has provided many pages of a work visa guide from Immigration New Zealand. I have not reviewed this material as what is relevant in the context of Mrs ZE’s complaints is whether or not Mr Lukas provided her with competent and correct advice and completed the work he had been instructed to do and for which he had been paid.

e did not, and the finding of unsatisfactory conduct pursuant to s 12(a) of the Lawyers and Conveyancers Act 2006 is confirmed.

n her complaint, Mrs ZE says that Mr Lukas consistently assured her in various telephone conversations, that he would be lodging the visa applications on the following day. Mr Lukas has not disputed this, but it is emphasised that the failure to carry out his

promises forms only a minor part of the decision that Mr Lukas’ attendances and advice has neither been what “a member of the public is entitled to expect of a reasonably competent lawyer”11 nor conduct that would be “regarded by lawyers of good standing as being acceptable ...”.12

r Lukas’ conduct also breaches r 3 of the Rules (competence and timely conduct) and r 9 (unreasonable fees) thereby constituting unsatisfactory conduct in terms of s 12(c) of the Act.

n his submissions in support of his application for review, Mr Lukas says that his terms of engagement “had at the time a detailed description of the complaint process”. The only terms of engagement that have been provided to the Standards Committee or this Office are those issued on the letterhead of AB. Mr Lukas has not provided any terms of engagement issued by himself or Mr HN. There is nothing to support this submission.

r Lukas, somewhat surprisingly, says that Mrs ZE approached his instructing solicitor and demanded a refund.

rs ZE addressed her initial complaint to AB/HN. It is not clear where this letter was sent, but it was Mr HN who responded to her on 30 October 2019. The evidence is that Mrs ZE paid Mr HN directly and that the firm of AB had no involvement with these instructions at all. These matters may become clearer on further investigation by the Standards Committee as directed in this review.

he Committee has also noted that Mr Lukas did not provide his time records in relation to this matter and consequently there is nothing to support his submission about the time expended.

he Committee determined that Mr Lukas’ fee was more than fair and reasonable, and this was founded on the fact that Mr Lukas achieved nothing of value

for her. Mr Lukas did not lodge the visa applications and Mrs ZE and her husband withdrew their instructions.

r Lukas seeks a reversal of all orders made by the Committee. He has not sought a review of the detail of the orders in the event that the findings of unsatisfactory conduct are confirmed. Without any detailed submissions from Mr Lukas, there is no reason for me to vary the orders made.

ursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006, all of the orders made by the Committee are confirmed.

he substantive reasons advanced by Mr Lukas against publication are based on the fact that he has, just prior to his application for review, been approved by the New Zealand Law Society to practice on his own account. He advises that he has agreed to limit his area of practice to immigration law only and not to operate a trust account. It is difficult to contemplate how a lawyer can operate a practice without a trust account and there are concerns with regard to this possibility in circumstances where (as appears to have happened in this instance) a lawyer renders an invoice in advance of completing the work he/she has been instructed to carry out.

n addition, a quick review of the terms of engagement on Mr Lukas’ current website refers to client funds being placed on deposit and property transactions, which are not instructions that can be undertaken by a lawyer who does not operate a trust account. It is presumed that the New Zealand Law Society will have discussed, or will discuss with Mr Lukas, the difficulties in this regard.

hese references cast some doubt on the advice by Mr Lukas that he had agreed with the Practice Approval Committee to practice only in the area of immigration law.

he Standards Committee has fairly acknowledged that “the bar for name publication [i]s high ...”.13

ection 142(2) of the Act establishes a presumption of privacy. This Office has issued Publication Guidelines which are set out in paragraph [4] of the Committee’s determination. Additional comments made in that decision, CA v XU LCRO 196/2010 (18 May 2011), are equally relevant to this decision:

he objectives of the Lawyers and Conveyancers Act 2006 are also relevant to these considerations. Section 3(1) of the Act provides that “the purposes of the Act are –

o maintain public confidence in the provision of legal services and conveyancing services;

[20] ... undoubtedly, the respondent’s practice will be affected if publication is ordered, although one would expect that the practice of a lawyer who does not provide competent advice would be affected in any event ....

n this matter, the overriding principle is the objective of protecting consumers of Mr Lukas’ services. Publication of Mr Lukas’ shortcomings that are apparent in this matter would only become known to potential consumers by making Mr Lukas’ identity known. Not to do so would amount to a failure by this Office of the obligations imposed by the Act.

... It considered Mr Lukas’ conduct was at the higher end of the scale of unsatisfactory conduct and the circumstances meant publication was necessary to protect the public. Mr Lukas acts in the field of immigration and many of his clients are based overseas. Prospective clients are therefore unable to rely on local knowledge of Mr Lukas’ skills and reputation when deciding to engage an immigration representative. Publication of Mr Lukas’ name would enable prospective clients based overseas to make an informed decision on whether or not to engage Mr Lukas.

ursuant to s 211(1) of the Lawyers and Conveyancers Act 2006 the determination of the Committee to publish the identity of Mr Lukas and a summary of the facts, outcome and orders of the matter, but not any details that might lead to the identification of any of the other parties involved, is confirmed.

or the same reasons as discussed above, this decision will also be published, excluding any details which might lead to the identification of persons other than Mr Lukas.

here an adverse finding is made, costs will be awarded in accordance with the Costs Orders Guidelines of this Office. It follows that Mr Lukas is ordered pursuant to s 210(1) of the Act to pay costs in the sum of $1,200 to the New Zealand Law Society by no later than one month after the date of this decision.

ursuant to s 215 of the Act, this order for costs may be enforced in the civil jurisdiction of the District Court.

ection 209(1) of the Lawyers and Conveyancers Act 2006 enables a Review Officer to “direct a Standards Committee to reconsider and determine, either generally or in respect of any specified matters, the whole or any part of the complaint, matter, or decision to which any application for review relates”.

o seek comment from the firm of AB as to whether or not it authorised Mr HN and/or Mr Lukas to issue terms of engagement on its behalf to Mrs ZE.

o investigate further the fact that the invoice for fees issued by HN directed payment to Mr HN’s bank account in advance of the work being carried out and not to AB;

o investigate further the fact that the amount paid by Mrs ZE was in excess of the amount invoiced because she had assumed that the invoice was in US currency, but payment was accepted by Mr HN / Mr Lukas without referral back to Mrs ZE.

he matters referred to above are matters which have not been addressed by the Committee in considering Mrs ZE’s complaint. Whether or not the Committee

determines to pursue an own motion investigation into these matters is left to the discretion of the Committee.15

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

15 Pursuant to s 130(c) of the Lawyers and Conveyancers Act 2006.
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New Zealand Legal Complaints Review Officer

Lukas v ZE [2020] NZLCRO 10 (30 January 2020)