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PF v NY [2024] NZLCRO 130 (11 October 2024)

Last Updated: 10 December 2024

LEGAL COMPLAINTS REVIEW OFFICER ĀPIHA AROTAKE AMUAMU Ā-TURE
Ref: LCRO 156/2023
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 [X]
BETWEEN
PF

Applicant
AND
NY, WJ and MQ

Respondents

DECISION

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

Introduction


[1] The applicant, Mr PF, has applied for review of a determination by the [Area] Standards Committee [X] (the Committee) to take no further action on his complaint about the professional conduct of the respondents, Ms NY, Ms WJ and Ms MQ.
[2] At the relevant time, Ms NY was an “executive director” of law firm, (Law firm) (the Firm). Ms WJ was an employed lawyer of the Firm. Ms MQ was a sole practitioner.

Background


[3] The applicant is one of several trustees of a Treaty of Waitangi post-settlement governance entity for an iwi (the Trust).
[4] The Trust had an employee, whose job title was Executive Assistant (the EA). Part of her role involved “back-end web site maintenance” for the Trust.
[5] On 15 March 2023, the EA contacted the applicant by email about reinstating her password access to a Trust website. Their resulting engagement included an email from the applicant in reply, a further email from the EA (apparently written in upper case) and a further reply from the applicant (none of which I have seen) and a telephone conversation on 16 March 2023.
[6] It appears that the EA initially expressed concern about the nature of this engagement to the Trust’s Executive Chairperson (the Chair) on either 16 or 17 March 2023. The Chair made initial contact with Ms NY on 17 March 2023 regarding the possible need for employment process advice.
[7] On 23 March 2023, Ms NY sent a letter addressed to the Trust c/- the Chair giving outline advice about the Trust’s obligations under the Employment Relations Act 2000 and the Health and Safety at Work Act 2015. She made some recommendations about alternative procedural ways of dealing with the alleged incident.
[8] One of several suggestions Ms NY made was for a person independent of the Trustees and the EA to be appointed to investigate and provide a report about what had happened between the EA and the applicant.
[9] On 27 March 2023, Ms NY attended a Microsoft Teams hui with the Trustees other than the applicant to speak to her advice and answer any questions from those Trustees.
[10] On 29 March 2023, the EA made a formal complaint to the Trust about the applicant’s behaviour towards her in his email and the telephone conversation. The complaint also traversed various historical matters that had nothing directly to do with the exchanges of 15 and 16 March 2023.
[11] Also on 29 March 2023, the Trust instructed the Firm to proceed to arrange the suggested independent investigation (the Investigation). The Firm then contacted Ms MQ to ascertain her availability to be the independent investigator.
[12] The Firm prepared draft terms of reference for the proposed Investigation. Ms NY says the draft was circulated to and approved by the Trustees (other than the applicant).
[13] The Firm then sent the draft terms of reference to the applicant and the EA for comment. This was a step it had recommended in its advice to the Trust. In the

applicant’s case, this was accompanied by a copy of the complaint. Ms WJ emailed the documents to him on 18 April 2023. Her email expressed her understanding that the Chair would have already been in contact with the applicant about the matter.

[14] The purpose of the Investigation was stated to be to “...determine whether any concerns raised through the complaint, or any other concerns of a similar nature that may emerge during the course of the investigation that warrant inquiry, have substance such that they may constitute breaches of good faith, health and safety, confidentiality and/or other employer obligations”.
[15] The document also made clear, however, that Ms MQ’s role was only to inquire into the facts of the matter and report to the Trustees, and “...not to make any decision or recommendations on any further action to be taken by [the Trust] in reliance on the investigation findings”.
[16] The applicant replied briefly by email on the same day recording that Ms WJ’s email was the first he had heard of the matter and objecting to being given just 48 hours to respond. He nevertheless did so by letter on 20 April 2023 in which he again objected to being given just 48 hours to provide feedback on the complaint, expressed his view that it was the behaviour of the EA, and particularly her tone, that had been inappropriate, commenting that he had informed the EA of his being “... disrespected and bullied by certain Board members...” and questioning the Trust’s process.
[17] The applicant also expressed the view that, in summary, there was no jurisdiction to conduct the proposed Investigation as there was no employment relationship between him and the EA, that his obligations arose solely under the trust deed for the Trust, that any issues were ones of governance between the Trustees that needed to be addressed in a kaupapa Māori way in accordance with tikanga but that he had nevertheless responded to advice of the complaint in good faith.
[18] The applicant’s letter appears to have crossed with an email from Ms WJ extending the time for response by five days. The applicant had requested a further week.
[19] On 24 April 2023, Ms WJ replied to the applicant’s 20 April 2023 letter. Relevantly, she clarified that she was seeking feedback only about the appointment of the investigator (including any issue of conflict of interest or concern about suitability) and about the terms of reference. She noted that any issues regarding the complaint itself were to be dealt with through the independent investigation.
[20] Ms WJ also stated that:

From your feedback, we understand that you do not have any issue with [Ms MQ’s] appointment but question whether an employment investigation is the proper way of dealing with things given you see many of the issues as governance issues. We understand that the Board is an agreement that any governance issues should be dealt with at trustee/Board level and in accordance with tikanga. The current investigation is proposed to address a complaint received by the Trust from an employee, and therefore the need for the Trust to investigate... arises from that employment context and uphold its obligations as an employer (sic). As you rightly point out, the Trust has no employment relationship with you, so rather this is about dealing with an employee complaint appropriately from an employment perspective, including following tikanga in this space.


[21] I note that Ms WJ appears to have misunderstood the applicant’s comments about “jurisdiction”. He had not raised any issue of himself being an employee of the Trust. He had merely stated, in short, that he was not the EA’s employer.
[22] Ms WJ concluded her email with the following:

We appreciate that many of your comments related to the content of the investigation itself, and you will have an opportunity to provide that account to the Investigator for consideration. Please let us know if you would like us to provide the information to the investigator ahead of your interview with her.

We have not forwarded your letter to the other Trustees at the stage, given the proposed investigation process and that aspects respond to the complaint directly (sic). We note however that there are a number of matters raised regarding process and governance issues. We are happy to pass these on if you would like.


[23] There was further correspondence between the applicant and the Firm between 24 April and 8 May 2023. In his email on 8 May 2023, the applicant relevantly referred to “... illegal fishing expeditions and drilling down on individual trustees...”, stated that he had received no answer to the concerns expressed in his letter of 20 April 2023 and recorded that “... I have absolutely no intention of being subjected to any trumped-up investigation”.
[24] Ms MQ stated that she emailed the applicant on 10 May 2023 informing him of her appointment and of the investigation process. She stated that she attempted to meet with the applicant on four occasions between then and 1 June 2023 and that the applicant did not respond to her contact. She stated that she then informed the applicant that if she did not hear from him by 2 June 2023, she would assume he did not wish to engage in the investigation process.
[25] It appears there was no engagement by the applicant with Ms MQ at any time.

The complaint


[26] The applicant’s complaint to the NZLS’s Lawyers Complaints Service (the LCS) about the professional conduct of the respondents is dated 23 May 2023. The respondents were advised of it in mid-June.
[27] Ms MQ responded by letter on 29 June 2023 and Ms NY on behalf of herself and Ms WJ on 30 June 2023.
[28] Ms MQ’s position was simply that she had been engaged to undertake an independent investigation into a complaint made about the applicant, her engagement had not extended beyond attempting to contact him and the applicant had no grounds to make a complaint against her.
[29] Ms NY’s response traversed the course of events and stated, in essence, that:

[30] I will endeavour to summarise the elements of the applicant’s complaints. This is not a straightforward exercise, as they are idiosyncratically expressed and difficult to understand.
[31] I observe at this point that the applicant has a post-graduate degree in law but was not a practising lawyer at the relevant time. I understand that he held a practising certificate for about five years and had last held one in 2018. He described himself, I think accurately, as both “a trained lawyer” and a “lay person” in the context of the proposed Investigation.
[32] Against Ms NY, the complaint was that:
[33] Against Ms WJ, the applicant’s complaint was only that she “...[divested] herself of any responsibility to address the ‘legality’ issue instructing a third lawyer, [Ms MQ], to conduct the investigation”.
[34] The applicant made the same complaint in reverse against Ms MQ, saying that she also “...[divested] herself of any responsibility to address the ‘legality’ issue...” by “tag-teaming” the issue back to Ms WJ. The applicant added that Ms MQ “...[continued] to steam roll an investigation” and she also breached the applicant’s privacy and human rights.
[35] In his supporting reasons, the applicant also stated that “the Trustees can’t do their job if they are in threat of being harassed and bullied by the lawyers who merely adopt the position of the Chair” (sic).

The Standards Committee’s decision


[36] The Standards Committee’s decision is dated 17 October 2023. It was succinct, to the point of being spare.
[37] The Committee stated that the applicant was not a client of either the Firm or of Ms MQ. It stated that r 10.1 of the Rules1 might be relevant to the applicant’s complaint. Rule 10.1 provides that:

A lawyer must, when acting in a professional capacity, treat all persons with respect and courtesy.


[38] The Committee’s conclusions were, in summary, that:

[39] Having made those findings, the Committee resolved under s 138(1)(c) of the Act2 to take no action on the complaint. Under s 138(1)(c), a standards committee can resolve to take no action on a complaint if it considers that the complaint is frivolous or vexatious or is not made in good faith.

Application for review


[40] The applicant’s application for review is dated 31 October 2023. The applicant’s entertainingly expressed statement of the context of his complaint provides an indication of his motivations. He stated:

Whilst a complaint about the conduct of our lawyers might seem relatively innocuous in the circumstances, it needs to be seen in light of the bigger picture. The bigger picture is that even in the relatively short twenty-year history of Treaty Settlements, case-law abounds with litigation regarding these Settlement Trusts. Often bad investment decisions are made, money is lost or even worse, stolen. Where bad or fraudulent decisions are made the Courts have rightly asked why the Trustees didn’t do anything about it? Well, one way to silence dissenting Trustees is to, with respect, sic the lawyers onto them (we’ve all seen the series “Suits”). The lawyers can put dissenting Trustees under the thumb screws, tie them up with unfounded complaints and send a message about who is in control of the Trust. Whilst this “bigger picture” might not be part of your direct review, it

1 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules).

2 Lawyers and Conveyancers Act 2006 (the Act).

illustrates what is really going on in this case, and why it was important, apart from the legality of the lawyer’s actions, to call out the lawyer’s conduct as our legal adviser.


[41] The applicant then, in summary:

[a] bad North Korean spy drama, a ‘gulag’ interrogation as it were, not something one would get in New Zealand”;

(d) asserted that the respondents “...relied on ‘bull rush’ tactics”;

(e) asserted that the “...whole notion of [the Investigation] was preposterous...” and that the Investigation was “...so egregious as requiring to be highlighted as falling below the standards clients are entitled to expect”;
(f) alleged that Ms NY had duties to the applicant as a Trustee;

(g) alleged that Ms NY had failed to advise the applicant to get separate legal advice (implying that she had an obligation to do so);
(h) asserted that Ms NY had failed to advise the Trust that the complaint was between the EA and the Trust;
(i) described the proposed investigation as a “witch hunt”;

(j) made reference to there being no “corporate veil” protection;

(k) alleged that the respondents had used a “...‘third-party’ contract or engagement model to side step any discussion about legality, and instead trying to rail-road their investigation”;
(l) asserted that “...in an ironic twist the Committee in its decision actually concurred with that approach” and asserted that the alleged approach “...would create an absurd situation of lawyers simply contracting out of any responsibilities whatsoever...” and that this “...didn’t seem right or fair”;
(m) asserted that Ms NY owed a duty of care to him as a Trustee;

(n) asserted that Ms NY had “...adopted the position that she acts for the Chair and the Chair’s two Trustees rather than the Trust”.
[42] The applicant also stated that:

...a lawyer’s duties are wider than mere contract, they involve obligations to the rule of law, to facilitate the administration of justice and to act in accordance with all fiduciary obligations and duties of care – Rule 4.


[43] The applicant reiterated his allegation of conflict of duty in breach of r 6.1 and then glissaded into allegations against the Chair and his fellow Trustees of abuse of power and constructively dismissing him from his trustee role. Refocusing on the respondents, he accused them of being “the Chair’s hired guns” and reiterated his complaints of conflict of duty and questionable legal advice.
[44] To round things off, the applicant dipped into gratuitous and ill-considered misogyny, stating:

One can see how incredibly tempting it must be for female lawyers who have their firms’ extensive resources to wield that power over lay-people, particularly where that power might be otherwise lacking in their everyday lives.


[45] The respondents responded to the application for review. In summary, they relied on their original responses and the Committee’s decision, rejected the additional allegations made by the applicant on review and, understandably, expressed their sense of offense at the comment quoted above.
[46] Ms NY also recorded her understanding that the proposed Investigation did not commence because the fact of the applicant’s complaint against the Firm and Ms MQ served to frustrate the Investigation process. She added that the Firm no longer had instructions regarding the matter.

Review on the papers


[47] This review has been undertaken on the papers pursuant to s 206(2) of the Act, which allows a Legal Complaints Review Officer (LCRO or Review Officer) 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. The respondents consented to this course of action. The applicant requested an applicant-only hearing.
[48] I issued a minute in response to the applicant’s request. I explained that the reasons he gave for asking to be heard in person were issues already raised in the

review, that if I were to hear from him in person I would also need to hear from the respondents, that this would be an unnecessary burden on the respondents and that I did not consider that a hearing in person would be of any utility or benefit. I declined the request.

[49] I also afforded the respondents the opportunity to make brief written submissions on the potential application of s 205 and/or s 138(1) of the Act should they wish to do so. The respondents took that opportunity. They supported the Committee’s finding regarding the application of s 138(1)(c) and submitted that four of the five grounds for strike-out of the review application under s 205(1) were met. In short, they submitted that the application disclosed no reasonable cause of action and was frivolous, vexatious and an abuse of process.
[50] The applicant elected not to reply to their submissions, other than to reiterate that the respondents owed duties to the Trustees collectively, referred to as “us”, and stating that “...the corporate veil Matrix swerving around any and every duty to the individual Trustees is simply absurd” (sic).
[51] 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


[52] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:3

... 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

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

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.


[53] The High Court has also described a review by this Office in the following way:4

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.


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

The issues


[55] The issues for consideration in this review are as follows:

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

(k) Should the complaint, or any element of the complaint, be struck out on any other ground?

Discussion


(a) Was the Committee’s decision deficient?

[56] The Committee made no reference to the applicant’s allegations of conflict of duty, “questionable legal advice” to the Trust, breach of his privacy, breach of his human rights, bullying, harassment, failing to engage with him regarding the ‘legality’ issue and failing to ensure he received advice. (The apparent allegation of failing to uphold the rule of law and facilitate the administration of justice was a fresh one on review).
[57] Instead, the Committee referred only to a complaint that had not been made. The applicant’s numerous allegations did not include one of lack of courtesy or respect towards him by the respondents, as distinct from the EA and the Trustees.
[58] I infer that the Committee found it difficult to give any credence to the allegations the applicant did make and therefore considered it unnecessary to comment on them. If that is so, its approach was unsatisfactory. The absence of any comment gives the impression that those allegations have not been properly considered, or not considered at all. All parties are entitled to know not only that the Committee has properly considered the allegations made but also the conclusions it has reached regarding those allegations.
[59] The Committee also did not specify whether it considered the complaint to be frivolous, or vexatious, or not made in good faith. These are alternative grounds for taking no further action. The applicant is left not knowing why his complaint has been dismissed. Again, this is unsatisfactory. Brevity of expression is appreciated but not at the expense of the Committee altogether failing to explain itself.
[60] In summary, it is unhelpful both to the parties and to the LCRO if a Committee’s decision focuses solely on the outcome and:
[61] Against that background, the primary issue for me is whether or not it is appropriate for me to determine any or all of the elements of the complaint on review, rather them refer them back to the Committee for reconsideration. With some hesitation, I have concluded that the better course is to determine the matter, for three reasons.
[62] The first reason is that most of the elements of the complaint are outside the jurisdiction afforded by the Act. The second reason is that the outcome regarding those elements of the complaint that are within the jurisdiction is inevitable. The third reason is that the applicant appears to have achieved what I have little doubt was his immediate practical objective of frustrating the proposed Investigation. This makes the review process something of a dry argument.

(b) Which complaints do I not have jurisdiction to consider?

Jurisdiction


[63] A standards committee is not a substitute for a court of law. It is a professional disciplinary body. Its function is to determine whether there has been any lapse by the lawyer in professional standards of conduct prescribed under the Act and in rules and regulations made under the Act. My jurisdiction is no different. The LCRO’s office is not a court and I am not a judge.

Trust governance


[64] The applicant has expressed a wide array of grievances, most of which revolve around tensions between him and the other Trustees and particularly the Chair. The applicant commented in correspondence that the Trustees represent different family interests within the iwi.
[65] The applicant’s commentary may just represent conflicting views on Trust governance. Alternatively, it may be indicative of a contest for control of the iwi’s resources, present and future, between different factions within the iwi. In either case, any such issues have nothing to do with the respondents and are not within the jurisdiction of the Act. The Committee could not determine any aspect of them and neither can I.

Human rights and privacy


[66] The applicant did not specify in what way his human rights had been breached by reason of the respondents’ conduct. Nor did he specify in what way his privacy had

been breached by reason of the Firm writing to him about the terms of reference of the proposed Investigation or by Ms MQ writing to him about the proposed Investigation itself.

[67] The applicant has the right to pursue whatever legal remedies he might have in whatever forum is appropriate in respect of any legal rights he considers have been breached against anyone he believes might have breached them. Again, the Act provides no relevant jurisdiction and the lawyer’s complaints process is not the appropriate process to do so.
[68] If the applicant were to pursue any such remedy against any of the respondents and persuade a court or tribunal of competent jurisdiction to make a finding that such respondent had breached his rights under the Privacy Act 2020 and/or the New Zealand Bill of Rights Act 1990, he might then have grounds for a professional conduct complaint against that respondent. As matters stand, those complaints require no further discussion here.

Trust law and employment law


[69] The Trust’s attempted commencement of the Investigation may well raise issues of trust law and proper process and/or employment law, as asserted by the applicant. In particular, I understand the applicant to question the authority of either the Chair or the Trustees collectively (excluding him) to enter into a valid retainer for legal services to the Trust.
[70] The applicant also seems to suggest that the Trust could not initiate an Investigation into his conduct towards the EA, and Ms MQ could not undertake such an Investigation, because he individually (in his Trustee capacity) was not the EA’s employer. The relevant correspondence and terms of reference do not suggest that the applicant was the EA’s employer but do imply that his actions as a Trustee have potential implications for the Trust in terms of employment law.
[71] I have read the EA’s complaint. It is not expressed as a personal grievance claim. Rather, it is expressed as a complaint about numerous aspects of the applicant’s behaviour as a representative of the Trust. It should be obvious to any legally trained person that if the EA were to bring a personal grievance, it would be against the Trust (that is, the Trustees collectively) as her employer.
[72] In any event, these are matters the applicant is entitled to pursue, as necessary, with his fellow Trustees and/or before the appropriate tribunal or court. Neither the Committee nor the LCRO has jurisdiction to determine legal issues of trust law and

process or of employment law. To the extent that the applicant’s complaint is properly interpreted as including allegations against the respondents of “illegal” acts of that nature, it is misconceived.

“Questionable legal advice”


[73] The applicant alleges that Ms NY gave the Trust “highly questionable advice”. He does not explain in what respect the advice Ms NY gave was “highly questionable”, which I would normally understand to mean lacking in competence although this is possibly not what the applicant meant.
[74] It is for Ms NY’s client, the Trust, to raise any issue of competence in the giving of her advice. Quite apart from his own conflict of interest as the person about whose behaviour the EA’s complaint was made, any opinion the applicant might hold about the quality of the legal advice given by Ms NY to the Trust is a matter he can properly raise only in discussion with his fellow Trustees in accordance with whatever protocols are applicable under the Trust’s governance arrangements. It is not a matter he can raise individually by making a professional conduct complaint against Ms NY.

Misleading conduct


[75] An allegation against a lawyer of misleading conduct is arguably in a different category. I accept that any person with a sufficient personal interest (for the purposes of s 138(1)(e) of the Act), regardless of whether he or she is the lawyer’s client, can make a complaint of misleading conduct.
[76] The applicant’s argument about this aspect of his complaint is circular and self-serving. He asserts that Ms NY misled the Trust into believing the proposed Investigation was legal. His assertion regarding its illegality is premised on the alleged breach of his privacy and human rights, neither of which is articulated.
[77] For the allegation of misleading conduct to be worthy of consideration, the applicant would first need to establish that his privacy and/or human rights had been breached and then that such breach undermined the legality of the proposed Investigation, in each case as a matter of law. The applicant has done none of these things.
[78] This aspect of the complaint therefore has no merit, regardless of whether the applicant has sufficient personal interest in the matter, which is moot.
[79] In summary, none of the above matters are within the jurisdiction afforded by the Act. This leaves just the allegations of conflict of duty, bullying, harassment and possibly failure to uphold the rule of law and facilitate the administration of justice.
[80] For completeness and as a courtesy to the Committee, I will also address the Committee’s comments about courtesy and respect.

(c) Who was the respondents’ client?

[81] It is clear from the materials that the Firm was engaged by the Trust; that is, the Trustees collectively. (It is not an incorporated body). Consequently, Ms NY’s and Ms WJ’s client for the purposes of the Act and Rules was the Trust. Ms MQ, although contacted initially by the Firm, was also engaged by the Trust.
[82] The evidence of Ms NY is that she engaged with all the Trustees collectively (other than the applicant) in answering any questions on her initial, written advice to the Trust, which I infer was given on the instructions of the Chair. I accept that evidence.
[83] The applicant appears to question the authority of either the Chair or the other Trustees collectively to give valid legal instructions without his concurrence. I have no information as to the requirements of the trust deed for the making of a valid Trust decision and, again, I have no jurisdiction to determine the validity of any such decision. That is a matter he can raise with his fellow Trustees, should that be necessary.
[84] For the purposes of considering the complaint, I find that the respondents’ client was the Trust and there is nothing to suggest that the Firm was wrong to take the view that it was appropriate for it to take instructions from the Trustees collectively excluding the applicant by reason of his conflict of interest.
(d) Did the respondents act for the applicant or otherwise owe him a duty of care or fiduciary duty?
[85] The applicant’s argument, although not clearly articulated as such, appears to be that respondents acted for him as well as for the Trust by reason of the fact that he was a Trustee. This suggestion seems to be bound up in the applicant’s comments about “the corporate veil”. (The later, additional reference to the “Matrix” is too obscure for me to understand). In support of his proposition, the applicant has, on review, cited two decisions.
[86] The first is a decision of the LCRO in YJ v GK.5 That review involved a limited liability company and its shareholders. The LCRO made a finding of fact,6 reversing the contrary finding of the standards committee, that the lawyer was acting for the company’s shareholders as well as for the company in connection with the preparation of a shareholders’ agreement and related dealings and advice. For professional conduct purposes, this gave rise to an obligation of disclosure and a conflict of duty.
[87] The second cited decision is an English Chancery Division case, Moody v Cox & Hatt.7 That case involved a lawyer who was simultaneously trustee of a vendor trust on a sale transaction, solicitor for the vendor and solicitor for the purchaser. The lawyer failed to disclose to his purchaser client valuation information to which he was privy as vendor trustee and which evidenced that the property was not worth the purchase price. The Court held that he was not relieved of his obligation of disclosure of all material information to his purchaser client by the fact that he owed a conflicting obligation as vendor trustee.
[88] The applicant has not explained how either of these decisions could be relevant to his complaint against the respondents. I can discern no factual similarity and no basis for any analogy to be drawn. The Trust is not an incorporated body and has no corporate veil to be pierced even if the concept was applicable in the present disciplinary context, which it is not.
[89] More pertinently, there is nothing in the factual circumstances to suggest that the respondents could be argued to have been acting for the applicant in his individual Trustee capacity at the same time as acting for the Trustees collectively on the matter of the Trust’s proposed Investigation of the events giving rise to the EA’s complaint.
[90] Consequently, none of the respondents owed the applicant a duty of care or a fiduciary duty in relation to the matter on which they had been instructed, namely the Trust’s appropriate response as employer to the EA’s complaint about the behaviour of the applicant.
[91] I observe that if any fiduciary duty was owed in the circumstances, it was likely owed by the applicant to his fellow Trustees to safeguard the interests of the Trust but that is again a matter of trust law that lies between the Trustees.

5 [2021] NZLCRO 56.

6 At [85]–[87].

7 [1917] 2 Ch 71.

(e) What was the respondents’ primary professional duty to their client?

[92] The primary professional duty of each of the respondents, as expressed in r 6 of the Rules, was:

...within the bounds of the law and these rules, [to] protect and promote the interests of the client to the exclusion of the interests of third parties.


[93] The applicant was a third party for the purposes of that rule. There is nothing in the materials to suggest that any respondent did not meet her duty to the Trust under r 6. I reject the applicant’s apparent submission that it was “absurd” of them to do so.

(f) Did the respondents have any conflict of duty in advising the Trust regarding the EA’s complaint against the applicant?
[94] Rule 6.1 of the Rules deals with conflict of duty between two or more clients. It provides that:

A lawyer must not act for more than 1 client on a matter in any circumstances where there is a more than negligible risk that the lawyer may be unable to discharge the obligations owed to 1 or more of the clients.


[95] The applicant appears to argue that this rule was engaged when:

[96] The applicant’s allegation that Ms NY gave the Trust “highly questionable advice” is accompanied by an assertion that the advice was “...aligned with the interests of the Chair in direct conflict with the obligations to the Trust and trustees”. This assertion appears to be implicitly premised on an argument that Ms NY was acting for the Chair individually, rather than for the Trust. Ms NY denies this.
[97] Again, the applicant’s complaint is misconceived. There is no information before me to suggest that either:
[98] Further, as already noted, the applicant’s apparent alternative argument that the respondents were in some way acting for him does not stand scrutiny.
[99] Consequently, there is no issue for me to determine regarding the potential application of r 6.1 of the Rules.

(g) Is there any evidence of any respondent bullying or harassing the applicant?

[100] The correspondence from the Firm to the applicant is straightforward and professional. There is nothing in it that could be argued to be inappropriate in tone.
[101] The applicant has not disclosed Ms MQ’s correspondence to him. If such correspondence was improperly expressed, I expect he would have done so. There is no information before me to support the applicant’s complaint in this regard.
[102] There is no suggestion of any engagement directly between any respondent and the applicant, other than by correspondence. The applicant did not engage with Ms MQ at all.
[103] I find there is no factual basis for this element of the complaint.

[104] Any issues the applicant has with his fellow Trustees are for him to address with them.

(h) What professional duties did the respondents owe to the applicant?

[105] The applicant correctly stated on review that the respondents had a general duty under the Act to uphold the rule of law and to facilitate the administration of justice. The implicit argument that one or more of them had failed to do one or more of those things was not one he had made to the Committee. Strictly speaking, I should therefore not entertain it. I identify no prejudice to the respondents in doing so, however.
[106] The Committee correctly identified that each respondent had a duty under r 10.1 of the Rules to treat the applicant with respect and courtesy. Each respondent also had a duty under r 12 of the Rules to conduct their dealings with the applicant with integrity, respect and courtesy.

(i) Is there any evidence that any of the respondents breached any such duty?


[107] If the applicant had an argument to make in respect of the rule of law or the administration of justice, it was not developed. The issue of alleged illegality of the

Investigation was one he could have raised with Ms MQ had he elected to engage with her. He did not do so.

[108] The applicant did not expressly allege that any respondent failed to treat him, or conduct dealings with him, with respect and courtesy, aside from the allegations of bullying and harassment I have already dealt with. Consequently, I consider there was no need for the Committee to address the matter.
[109] The applicant raised no issue regarding this aspect on review, at least in those terms. This appears to confirm that he had not intended to raise any such issue in his complaint.
[110] Nevertheless, I have carefully read the correspondence available to me. For avoiding doubt, I find there is nothing in the correspondence of any of the respondents that could be argued to be discourteous or disrespectful.
[111] I expressly include within the scope of that finding the fact of the respondents corresponding with the applicant about the subject matter of the EA’s complaint. The implicit suggestion by the applicant that it is disrespectful for a lawyer to accept instructions to advise on an employee complaint about a male trustee’s conduct because the lawyer is female is one of the more extraordinary comments I have read in a submission by someone who describes himself as a senior lawyer.
[112] The complaint of conducting, or facilitating the conduct of, an “illegal” Investigation necessarily carries a connotation of lack of integrity. Again, the applicant has not explained why he considers the proposed Investigation to be “illegal” other than the generalised allegations of breach of human rights and privacy, let alone why the respondents must have been aware of its supposed illegality.
[113] For the purposes of the Rules, the finding I make is that there was nothing lacking in integrity about the respondents acting on their instructions from the Trust to endeavour to conduct an Investigation to ascertain the facts of the nature of the engagement between the applicant and the EA.
[114] I am not sure what to make of Ms NY’s comment (assuming it is correct) that the proposed Investigation was frustrated by the fact of the applicant’s complaint. Ms MQ may well have decided that a robust investigation without any input from the applicant was not practicable but proceeding with it would not have raised any issue of integrity, in my view.
(j) Is the complaint, or any element of the complaint, frivolous, vexatious or not made in good faith?
[115] As I have noted, the Committee failed to state whether it considered the complaint to be frivolous, or vexatious, or not made in good faith.
[116] I do not consider the complaint to be frivolous. On the contrary, the allegations are serious and the manner in which they are expressed is inflammatory and objectively offensive.
[117] Expressing the matter as charitably as is possible, the applicant has inappropriately misdirected his intra-trustee grievances against the Trust’s lawyers and himself failed to distinguish between issues of governance and issues of proper process.
[118] Expressing the matter less charitably and, in my view, more accurately, the applicant has set out to frustrate the proposed Investigation and thereby avoid his own conduct as a Trustee being examined by making a barrage of allegations that are misconceived, lack merit or make no objective sense.
[119] If the applicant were a lay person, I would be inclined to allow the possibility that the complaints of conflict of duty, bullying and harassment were the result of muddled thinking arising from failure to make the necessary distinctions noted in paragraph [117]. The applicant holds a post-graduate qualification in law, however, even if he is not a practising lawyer and has limited practice experience. He has also been a trustee for many years. I therefore find it difficult to credit him with simple misunderstanding.
[120] “Vexatious” has a dictionary meaning and a legal meaning. They are different. The difference relates to the relevance of the complainant’s purpose or intention. The dictionary meaning is, in this context, to make a complaint without sufficient grounds for the purpose of causing annoyance. (I use the word annoyance collectively to encompass potentially annoyance, frustration, worry or cost and/or an intention to harass). The legal meaning, in short, is to make a complaint without sufficient grounds that has the effect of causing annoyance.
[121] As stated in P v H:8

The Court has a right to stop an action at this stage if it is wantonly brought without the shadow of an excuse, so that to permit the action to go through its ordinary stages up to trial would be to allow the defendant to be vexed

8 P v H LCRO 02/2009.

under the form of legal process when there could not at any stage be any doubt that the action was baseless.

Importantly his honour did not consider that the action must be brought with the intention of “vexing” or annoying the defendant. However where a claim is baseless the effect of it is simply to cause inconvenience to the defendant. It is the fact that it is clearly baseless and therefore has the sole effect of annoying the defendant that makes it vexatious. The intention[s] of the plaintiff (or in this jurisdiction the complainant) are therefore not relevant to this question. Where a complaint is brought which is in fact wholly groundless it may be vexatious even though the complainant mistakenly thinks it has merit.


[10] I note also that in s 138(1)(c) the word vexatious can properly be read along with the accompanying phrases of “frivolous” and “not made in good faith”. Although the sentence uses the disjunctive “or” between the concepts, there is considerable overlap in these terms: Cameron v Masters [1998] NZFLR 11...

[11] ... Where proceedings are brought for a collateral purpose this will weigh in favour of them being found to be vexatious: L v W (No 3) [2003] NZFLR 961 per Heath J at para 55 (upheld on appeal [2004] NZFLR 429).

[122] I consider it to be clear from the applicant’s various criticisms of the Firm and particularly the views he expresses about its “questionable legal advice” on previous occasions that have nothing to do with the EA’s complaint against him that he is antagonistic towards the Firm in its role as legal adviser to the Trust. I further consider that this demonstrates an arguable collateral purpose in making his complaint against Ms NY and Ms WJ, namely to undermine the solicitor-client relationship between the Firm and the Trust.
[123] In any event, the applicant was well able to pursue whatever disputes or grievances he had with his fellow Trustees and any issues over the proper governance of the Trust without resorting to making a professional conduct complaint against its lawyers.
[124] Similarly, there was nothing to prevent him either ignoring Ms MQ (as he did) or raising his arguments on the merits and as to jurisdiction and/or “legality” in the context of the Investigation without making a complaint against her.
[125] I conclude that the complaint was both vexatious and not made in good faith for the purposes of s 138(1)(c) of the Act.
(k) Should the complaint, or any element of the complaint, be struck out on any other ground?
[126] Under s 205(1)(a) of the Act, a Review Officer may strike out an application for review if it discloses no reasonable cause of action.
[127] Because of the deficiencies in the Committee’s decision discussed in this decision, I consider it was not unreasonable for the applicant to make his application for review.
[128] Nevertheless, on the merits, I consider for the reasons stated in paragraphs [63] to [80] that the elements of the complaint discussed in those paragraphs and consequently the review application regarding those elements disclose no reasonable cause of action.
[129] It is unnecessary to consider whether the application for review is also an abuse of process.

Decision


[130] Pursuant to s 205(1)(a) of the Act, I strike out the following aspects of the application for review, and consequently the complaint (to the extent the complaint is properly interpreted as including them), on the grounds that they disclose no reasonable cause of action for the purposes of the Act and Rules:
[131] This does not preclude the applicant from pursuing any of items (a) to (d) above in the proper forum.
[132] Pursuant to s 211(1)(a) of the Act, the decision of the Committee to take no further action on the complaint under s 138(1)(c) of the Act is otherwise confirmed as to

all elements of the complaint, except those struck out, on the grounds that they are vexatious and not made in good faith. For avoiding doubt, these include:

(a) alleged conflict of duty;

(b) alleged breach of duty of care;

(c) alleged breach of fiduciary duty;

(d) alleged bullying;

(e) alleged harassment;

(f) alleged failure to uphold the rule of law and facilitate the administration of justice;
(g) in case I am wrong to discount the Committee’s interpretation of the potential application to the complaint of r 10.1 (and/or r 12) of the Rules, alleged discourtesy or lack of respect.

Publication


[133] Section 206(1) of the Act requires that every review must be conducted in private. Section 213(1) of the Act requires a Review Officer to report the outcome of the review, with reasons for any orders made to each of the persons listed at the foot of this decision.
[134] Pursuant to s 206(4) of the Act, a Review Officer may direct such publication of his or her decision as the Review Officer considers necessary or desirable in the public interest. “Public interest” engages issues such as consumer protection, public confidence in legal services and the interests and privacy of individuals.
[135] Having had regard to the issues raised by this review, I have concluded that it is desirable in the public interest that this decision be published in a form that, subject to the following paragraph, does not identify the parties or others involved in the matter and otherwise in accordance with the LCRO Publication Guidelines.
[136] I note that the applicant disclosed a copy of the Committee’s decision to the Trust. Consequently, any party is permitted to disclose a copy of this decision to the Trust. The respondents are permitted to disclose it to their respective insurers.

DATED this 11TH day of October 2024


FR Goldsmith

Legal Complaints Review Officer

In accordance with s 213 of the Act, copies of this decision are to be provided to: Mr PF as the Applicant

Ms NY, Ms WJ and Ms MQ as the Respondents Ms VG as a Related Party

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

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