SD v RE [2020] NZLCRO 61 (5 May 2020)

Last Updated: 6 July 2020

LEGAL COMPLAINTS REVIEW OFFICER

_{ĀPIHA AROTAKE AMUAMU Ā-TURE}

[2020] NZLCRO 61

Ref: LCRO 162/2019

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 SD, JK & DZ

_Applicant

AND RE

_Respondent

_DECISION

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

_changed.

Introduction

[1] Mr SD, Mr JK and Ms DZ (the applicants) have applied for a review of a decision by the [Area] Standards Committee [X], which decided to take no further action in respect of their complaint concerning conduct on the part of Mr RE.

Background

[2] The parties have been engaged in a long-running dispute that has its origins in events in 2010 when Mr RE acted for the applicants. When they did not pay his fees, Mr RE, through his instructing solicitor, commenced fee recovery proceedings against the applicants (the fee recovery proceeding). Mr RE appeared as counsel a number of times in the fee recovery proceeding and related appeals that followed. The applicants kept count.

The complaint

[3] The applicants say in their complaint dated 21 August 2018 to the New Zealand Law Society (NZLS) that Mr RE appeared three times as counsel in a proceeding in which his conduct was at issue. They say he flouted the rules that preclude lawyers from appearing as counsel and a witness in the same proceeding, and broke “promises” he made to the Court. The applicants say Mr RE also committed perjury. They add that he made an offer of settlement to them on improper terms.

[4] For the reasons set out in the decision under review, the Committee was not persuaded that disciplinary action was required.

[5] The applicants disagree.

Application for review

[6] The applicants say the Committee did not:

(a) Take into account new evidence regarding Mr RE’s conduct in that he repeated the same behaviour again, namely appearing as counsel in a proceeding in which he was giving evidence and his conduct was at issue;

(b) Mention or deal with their fresh complaint that Mr RE failed to honour undertakings he gave to the Court; and

(c) Mention or deal with their new complaint that Mr RE gave false evidence in the fee recovery proceeding.

[7] Mr RE’s reply of 18 November 2019 refers to the Court of Appeal decision and says the conduct that is the subject of the complaint was raised by counsel who appeared for NZLS in that forum. At its heart, Mr RE’s response is that none of the matters raised by the applicants is worthy of consideration, or reconsideration, and the complaint should be laid to rest.

Review process

[8] This review has been determined pursuant to s 205(1)(a) of the Lawyers and Conveyancers Act 2006 (the Act) which provides for a LCRO to strike out, in whole or in part, an application for review if the LCRO is satisfied that the application for review discloses no reasonable cause of action.

Nature and scope of review

[9] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:1

... the power of review conferred upon Review Officers is not appropriately equated with a general appeal. The obligations and powers of the Review Officer as described in the Act create a very particular statutory process.

The Review Officer has broad powers to conduct his or her own investigations including the power to exercise for that purpose all the powers of a Standards Committee or an investigator and seek and receive evidence. These powers extend to “any review” ...

... the power of review is much broader than an appeal. It gives the Review Officer discretion as to the approach to be taken on any particular review as to the extent of the investigations necessary to conduct that review, and therefore clearly contemplates the Review Officer reaching his or her own view on the evidence before her. Nevertheless, as the Guidelines properly recognise, where the review is of the exercise of a discretion, it is appropriate for the Review Officer to exercise some particular caution before substituting his or her own judgment without good reason.

[10] More recently, the High Court has described a review by this Office in the following way:2

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

Discussion

[11] The application for review contains three elements:

(a) New evidence about repeats of the same conduct; (b) Breach of undertakings to the Court; and

(c) Giving false evidence in the fee recovery proceeding.

Repeats of the same conduct

[12] The applicants say Mr RE repeatedly appeared as counsel in the fee recovery proceeding in which his conduct was at issue and in which he was a witness.

[13] The complaint is fundamentally the same as the earlier iterations, but on different dates. As counsel appearing before the Court, Mr RE had obligations to the Court and to the administration of justice. As the Court of Appeal put it, the purpose of r 13.5.3 was not to protect the applicants’ interests.3 When the conduct occurred, the applicants were not, and had not been for quite some time, Mr RE’s clients.

[14] That is significant. Although any person may make a complaint about the conduct of a lawyer pursuant to s 132(1) of the Act, the duties owed by a lawyer to non- clients are decidedly limited. According to the Rules, Mr RE was primarily obliged to treat the applicants with integrity, respect and courtesy.4 The obligations that were the subject of unsatisfactory conduct findings were obligations Mr RE owed to the Court, not to the applicants. While the applicants’ concerns over perjury are addressed in the discussion below, the evidence does not demonstrate that Mr RE breached those three discrete requirements.

[15] As far as the Court is concerned, on each occasion Mr RE sought leave to appear. It was for the court decide, as it did on each occasion, whether leave would be granted or declined. That was entirely proper. The Court is well able to attend to deal with such applications made by its officers.

[16] As noted elsewhere, none of the Courts Mr RE appeared before were under any illusions about his involvement in the fee recovery proceeding, or that it was his fee that was the subject of recovery action. I agree with the Committee, it is not necessary to take those matters further. That aspect of the review application discloses no reasonable cause of action against Mr RE.

Breach of undertakings to the Court

[17] The applicants say Mr RE “promised” various judges on three separate

occasions that he would stop appearing as counsel in the fee recovery proceeding.

[18] Similar logic applies. The Court is well able to enforce undertakings by its officers that are matters of record. If the applicants asked the courts to do so, and the courts did not, no right of appeal lies to this Office. That aspect of the review application discloses no reasonable cause of action against Mr RE.

Giving false evidence in the fee recovery proceeding

[19] Fundamentally this is an allegation of perjury in the guise of a professional conduct complaint. This Office lacks jurisdiction to determine allegations of perjury.

Evidential conflicts in the fee recovery proceeding were for the District Court to resolve. No right of appeal lies to this Office. That aspect of the review application discloses no reasonable cause of action against Mr RE.

Summary

[20] The application for review discloses no reasonable cause of action against Mr RE. I have reviewed the materials and am satisfied there is no reason to take further action, which means there is no reason to reverse or modify the Committee’s decision. If this application for review had not been struck out, the decision would have been confirmed. However, as this application for review discloses no reasonable cause of action by the applicants against Mr RE, it is struck out pursuant to s 205(1)(a) of the Act. That leaves the Committee’s decision unaffected.

Anonymised publication

[21] Pursuant to s 206(4) of the Act, I direct that this decision be published so as to be accessible to the wider profession in a form anonymising the parties and bereft of anything as might lead to their identification.

Decision

Pursuant to s 205(1)(a) of the Lawyers and Conveyancers Act 2006 the application for review is struck out in whole on the basis that it discloses no reasonable cause of action by the applicants against Mr RE.

_{DATED this 5}th _{day of May 2020}

D Thresher

Legal Complaints Review Officer

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

Messrs SD and JK and Ms DZ as the Applicants

Mr RE as the Respondent

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