TD v PW [2024] NZLCRO 121 (25 September 2024)

Last Updated: 2 October 2024

LEGAL COMPLAINTS REVIEW OFFICER ĀPIHA AROTAKE AMUAMU Ā-TURE

	[2024] NZLCRO 121 Ref: LCRO 113/2024
CONCERNING	an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING	a decision of the [Area] Standards Committee
BETWEEN	TD Applicant
AND	PW Respondent

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

DECISION

[1] Mr TD has applied to review a decision of the [Area] Standards Committee to issue him with a notice of hearing.

[2] The notice of hearing was issued by the Committee in the course of its investigation of a complaint that had been lodged with the Complaints Service by Ms PW.

[3] The Committee’s notice of hearing followed what is a standard approach adopted by committees when conducting an investigation. The notice:

• (a) informs the parties that the complaint is to be the subject of a hearing; and
  
• (b) invites the parties to address any matters of fact or law that the parties consider relevant to the issues and conduct rules identified in the notice of hearing; and

• (c) invites the parties to address question as to whether the issues merited referral to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal; and
  
• (d) invites submission on penalty in the event of a finding of unsatisfactory conduct; and
  
• (e) invites submission on the issue of publication (in the event a conduct finding was made).
  

[4] Mr TD’s application is, as acknowledged by him, somewhat unusual.

[5] He makes request of the Legal Complaints Review Officer to make direction that the hearing be “permanently stayed”.

[6] I do not propose to examine in detail the complaint lodged by Ms PW that had prompted the commencement of the Committee’s investigation, suffice to say that the scope of the complaint was confined to the relatively narrow issue as to whether Mr TD had, in correspondence to Ms PW, breached his obligations to promote and maintain professional standards, or failed to treat Ms PW with respect and courtesy.

[7] In advancing his review Mr TD submits that:

• (a) he has no idea what the “hearing” is about; and
  
• (b) it is acknowledged that his application to strike out the Committee’s notice of hearing appears to be “unprecedented”, but the uniqueness of the application should not act as a barrier to the application being given proper consideration; and
  
• (c) to address the backlog in review hearings, the LCRO could assume a more proactive gatekeeper role by introducing an option to apply to strike out all or part of a Standards Committee decision; and
  
• (d) there were procedural deficiencies in the Committee’s notice of hearing in that the notice of hearing was undated, did not specify a hearing date, and was vague in articulating the nature of the complaint being advanced; and
  
• (e) the complainant had requested an apology which had been provided; and
  
• (f) indication in the Committee’s notice of hearing of intention to consider as to whether three identified conduct rules had been breached, lay outside the scope of the actual complaint; and

• (g) the Committee’s inquiry had the appearance of an “own motion” investigation and was in breach of natural justice and unsupported by any substantive facts or reasoning; and
  
• (h) “weeding out” notices of hearing on fatal procedural grounds would be a good start towards steering the work of the LCRO in a constructive future direction, and would assist in preventing prejudice and indirect harm to third parties currently caused by “bad” complaints and the current complaint process.
  

[8] In concluding his submission, Mr TD noted that he had been the subject of several adverse Committee decisions over the years which (at the risk of presenting as an “irrational contrarian”) he continued to question. Mr TD was concerned that publicity which had followed his attempts to challenge various disciplinary determinations had permanently tarnished his reputation.

[9] The remedies Mr TD seeks on review are:

• (a) direction that the hearing be “stayed”; or
  
• (b) direction that the notice of hearing be “struck out”; or
  
• (c) direction that the notice of hearing be “set aside”.
  

[10] It is doubtful as to whether a Review Officer has jurisdiction to “stay” the progression of a Committee’s hearing, or to strike out or set aside a notice of hearing. But I will, in fairness to the issues raised by Mr TD, approach the review by reference to a Review Officer’s jurisdiction to confirm, modify, or reverse any requirement or order made or direction given by a Standards Committee.1

[11] Mr TD is inviting the LCRO to exercise a strike out power and bring the Committee’s investigation to a halt.

[12] He is advancing argument that the LCRO should extend its role beyond that of a body with jurisdiction to review any determination, requirement or order made, or direction given by a Standards Committee, to that of essentially a first instance decision maker, charged with authority to make determinations on the merits of a complaint.

1 Lawyers and Conveyancers Act 2006, s 211(1)(a).

[13] Mr TD, a senior and experienced lawyer who is, on his own admission, very familiar with the complaint process, himself acknowledges that the LCRO would be moving into unchartered territory by shutting down a Committee’s investigation.

[14] The process of review is, as had been noted in a number of court decisions, “a very particular statutory process”.2

[15] 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.

[16] It is not the role of a Review Officer to examine complaints prior to a Committee investigating the complaint, and make decisions as to whether the complaint has substance.

[17] The Lawyers and Conveyancers Act 2006 sets out the framework for determining conduct complaints.

[18] The New Zealand Law Society is required to establish a Complaints Service to receive complaints about lawyers (and former lawyers).4

[19] Complaints must be administered in accordance with the Act and Rules governing the operation of the Complaints Service.

[20] The Law Society must, by practice rules, establish one or more Lawyers Standards Committees as part of its Complaints Service.

[21] Any person may complain to the appropriate Complaints Service about the conduct of a practitioner or former practitioner.5

[22] The functions of a Standards Committee include obligations to inquire into and investigate complaints made under s 132 of the Act.

[23] On receiving a complaint, a Standards Committee has several courses of action available to it, including initiating an investigation, issuing directions, or electing to take no further steps regarding the complaint.

2 Deliu v Hong [2012] NZAR 209, [2012] NZHC 158 at [39].

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

4 Lawyers and Conveyancers Act 2006, s 121(1)(a).

5 Section 132(1)(a)(i).

[24] In his submission reinforcing his review application, he sets out in some detail, the events that had prompted Ms PW to file her complaint.

[25] In a further submission filed with the LCRO on 10 September 2024, Mr TD provides further explanation of the exchanges between himself and Ms PW that were material to the complaint that had been filed.

[26] Mr TD submits that jurisdiction for the Review Officer to address his concerns can be grounded in argument that the notice of hearing issued by the Committee was flawed. Further, he submits that the notice of hearing gives indication that the Committee was pursuing an own motion investigation. A lack of clarity as to whether the Committee was pursuing an own motion investigation constituted, argued Mr TD, a breach of natural justice.

[27] A review applicant (in respect to complaints) may seek to review any determination, requirement or order made, or direction given, by a Standards Committee in relation to a complaint, or on a matter arising from a complaint.

[28] Mr TD may argue that the Committee’s notice of hearing constitutes a requirement or direction given, that provides a jurisdictional basis for review.

[29] I am not persuaded that a notice of hearing falls within the definition of either a “requirement” or “direction” but rather than become drawn into that discussion, I propose to address the concerns Mr TD identifies with the Committee’s notice of hearing.

[30] If a Committee elects to inquire into a complaint, it must send particulars of the complaint or matter to the person to whom the complaint or inquiry relates and invite that person to make a written explanation in relation to the complaint or matter.6

[31] A Committee may, by written notice served on the person complained against, request that specified information be supplied to the Standards Committee in writing.7

[32] After both inquiring into a complaint and conducting a hearing, a Committee has a number of determinations open to it to make.

[33] Hearings are conducted on the papers, unless the Standards Committee otherwise directs.

[34] To the best of my understanding, Committee hearings are always conducted “on the papers”.

6 Section 141(a).

7 Section 141(c).

[35] The purpose of the notice of hearing is to provide opportunity to the parties to make submissions to the Committee.

[36] The notice of hearing will (as was the case here) commonly reference the specific conduct rules potentially engaged by the complaint.

[37] There is expectation and requirement that lawyers cooperate with a Committee’s investigation.

[38] Responding to the notice of hearing provides the parties with further opportunity to bolster their case.

[39] Mr TD complains that the notice of hearing was undated.

[40] It is not common practice for committees to date the notice of hearing issued.

[41] Notices of hearing are forwarded to parties under covering letter.

[42] Correspondence was forwarded to Mr TD on 12 August 2024 advising that Ms PW’s complaint had been set down for a hearing on the papers. That correspondence recorded that the notice of hearing was attached.

[43] No procedural concerns arise as a consequence of the notice of hearing being undated. Mr TD would have been well aware of the date that he received the notice.

[44] Mr TD complains that the notice of hearing did not include a hearing date.

[45] Both the correspondence and the notice of hearing itself, advised that the matter would be heard “on the papers”. As an experienced lawyer, Mr TD would have been aware that decision makers do not, when indication is given that a matter is to be determined on the papers, provide the parties with a hearing date.

[46] Mr TD complains that the notice of hearing was vague and failed to inform him as to what might actually constitute a breach of the conduct rules referenced in the notice of hearing.

[47] In his initial application he suggests that he had no idea what the hearing was about.

[48] With every respect to Mr TD, this is disingenuous.

[49] He knew exactly what the complaint was about.

[50] It was not a complaint that was permeated with potential for subtle levels of interpretation or burdened with a complicated and convoluted factual context.

[51] Ms PW complained that Mr TD had been discourteous to her in correspondence he had forwarded to her on 10 February 2021. Ms PW identified the conduct rule she considered had been breached by Mr TD (r 10.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008).

[52] On 20 May 2024, Mr TD wrote to the Complaints Service concerning the complaint filed by Ms PW.

[53] In that correspondence he referenced the complaint number allocated to Ms PW’s complaint. He apologised for the correspondence he had forwarded to Ms PW on 10 February 2021. Mr TD noted that “I should not have expressed my opinion like this and regret that I did.”

[54] In light of the apology proffered by Mr TD and his specific reference to the correspondence that had caused Ms PW offence, it is difficult to understand submission now advanced by Mr TD that he does not understand the nature of the complaint.

[55] Nor is it clear what Mr TD’s argument is when he makes complaint that the Committee’s notice of hearing “has the appearance of an own motion investigation by this Standards Committee”, this said by him to constitute a breach of natural justice.

[56] The Committee’s notice of hearing presents as standard.

[57] The best that can be distilled from argument Mr TD is advancing when he raises suggestion of an own motion hearing, is possibility that Mr TD is suggesting that the Standards Committee was driving the complaint.

[58] There is nothing to indicate that the Committee’s inquiry had taken on the shape of an own motion investigation.

[59] Ms PW filed a complaint with the Complaints Service. From that point, the Committee’s process followed an entirely conventional path.

[60] Mr TD knows this.

[61] On 28 August 2024, he had made inquiry of the Complaints Service as to whether the matter was proceeding as an own motion investigation. He was advised that it was not.

[62] Mr TD submits that the notice of hearing is framed in vague terms and fails to provide particulars as to what might actually constitute a breach of the conduct rules referenced in the notice of hearing.

[63] Again, with every respect to Mr TD, he well understands the point and purpose of the reference to the various conduct rules.

[64] They are identified so that he has opportunity to address the specific rules.

[65] He has opportunity to advance argument that the conduct complained of does not constitute a breach of the rules referenced in the notice of hearing.

[66] It is not the task of the Committee to provide Mr TD with specific examples of what may or may not constitute a breach of a particular rule.

[67] It bears repeating how straightforward and “understandable” Ms PW’s complaint is.

[68] I note that Ms PW’s complaint, focuses on correspondence Mr TD had forwarded to her on 10 February 2021.

[69] The rules referenced in the Committee’s notice of hearing are rules 10,10.1 and 10.2.

[70] The current rules 10, 10.1 and 10.2 all, in general terms, touch on a lawyer’s obligations in the course of providing regulated services, to engage courteously with others.

[71] Those rules were introduced on 1 July 2021, by rule 8 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Amendment Rules 2021.

[72] Prior to the 1 July 2021 amendment, the then r 10 imposed obligation on a lawyer to promote and maintain proper standards of professionalism in the lawyer’s dealings.

[73] The r 10.1 in force prior to 1 July 2021 would seem to have little relevance to Ms PW’s complaint. That rule required a lawyer to treat other lawyers with respect and courtesy. Ms PW was not a lawyer.

[74] Nor would the pre-1 July 2021 r 10.2 have relevance for the PW complaint. That rule deals with issues arising from a lawyer’s communication with another lawyer’s client.

[75] Mr TD had, in correspondence to the Complaints Service of 28 August 2024, signalled his view that r 10.1 and r 10.2 appeared to have no application to the complaint.

[76] It would seem to be the case that the Standards Committee, in citing the conduct rules in its notice of hearing, has referenced the rules in place post 1 July 2021 and overlooked that the conduct complained of must be referenced to the conduct rules in force as of 10 February 2021.

[77] But these are issues that Mr TD is able to address in responding to the notice of hearing.

[78] An error in referencing a particular conduct rule does not contaminate the process such as could provide reasonable or proper foundation for intervention by the LCRO.

[79] Mr TD was not unaware of the scope of the rules and importantly, the steps he could take to defend suggestion that his conduct had breached any of the rules referenced.

[80] Mr TD is being asked to respond to simple complaint that he had engaged with Ms PW in a discourteous manner.

[81] It is open to him to respond to the Committee’s notice of hearing with argument as to why he considers that the complaint lacks merit. It is open to him to advance argument that he does not consider his conduct breached any conduct rules. It is open to him to advance argument that his willingness to proffer prompt apology for any offence caused, sufficiently dealt with the matter without need for further action.

[82] No compelling argument is advanced by Mr TD to support contention that a Review Officer should interfere with the Committee’s decision to issue the parties with a notice of hearing.

Anonymised publication

[83] 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 ss 211(1)(a)(b) of the Lawyers and Conveyancers Act 2006, the Committee’s decsion to issue a notice of hearing is confirmed.

DATED this 25TH day of SEPTEMBER 2024

R Maidment

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 TD as the Applicant

Ms PW as the Respondent [Area] Standards Committee New Zealand Law Society