PI v SY [2024] NZLCRO 83 (27 June 2024)

Last Updated: 13 July 2024

LEGAL COMPLAINTS REVIEW OFFICER ĀPIHA AROTAKE AMUAMU Ā-TURE

	[2024] NZLCRO 083 Ref: LCRO 34/2023
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	PI Applicant
AND	SY Respondent

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

DECISION

Introduction

[1] Mr PI has applied for a review of a decision by the [Area] Standards Committee

[X] to take no further action in respect of his complaint concerning the conduct of the respondent, Mr SY.

Background

[2] Mr PI, a trained [specialist], qualified in [Country A].

[3] He wished to practice in New Zealand.

[4] In November 2018, the New Zealand [Specialist] Board (the Board) made an order requiring Mr PI to undergo competence and examination requirements under s 38 of the [redacted] (the [redacted] Act).

[5] Further orders were made by the Board in 2021 in respect to Mr PI. The order issued at that time, imposed a supervision condition on Mr PI’s ability to practise.

[6] Mr PI wish to challenge the Board’s decisions.

[7] He instructed a [City S] based law firm (Law firm X).

[8] An appeal seeking to challenge the Board’s directions was lodged in the [City E] District Court.

[9] In May 2021, Mr PI instructed Mr SY.

[10] Mr SY issued Mr PI with a letter of engagement on 6 May 2021. Mr SY provided Mr PI with a quote for costs to be incurred in preparing and conducting the appeal.

[11] It became apparent that the scope to challenge the Board’s decision in the District Court was limited.

[12] The only avenue open to mount a broader challenge to the Board’s decision, was by way of judicial review.

[13] Mr PI instructed Mr SY to proceed with a judicial review. On 20 July 2021 Mr SY provided Mr PI with a further letter of engagement, this to cover anticipated costs for the judicial review.

[14] The decision was then taken to withdraw the District Court appeal.

[15] Mr SY issued Mr PI with his invoice on 21 September 2021. The invoice was rendered in the sum of $20,000 plus GST.

[16] Mr PI responded to the invoice with immediate complaint that Mr SY had failed to competently represent him. Mr PI informed Mr SY that if he did not receive a full refund of all fees paid, a complaint would be filed with the New Zealand Law Society.

The complaint and the Standards Committee decision

[17] Mr PI lodged a complaint with the New Zealand Law Society Complaints Service (NZLS) on 23 September 2021. The substance of his complaint was that Mr SY:

• (a) had undertaken work on a District Court appeal when the District Court had no jurisdiction to hear the appeal; and
  
• (b) had charged excessive fees as the appeal had not proceeded; and

(c) had provided a quote for proceeding a proposed judicial review that was excessive; and

(d) misrepresented the extent of his experience in the area of work he was required to undertake.

[18] Mr PI considered that Mr SY has deliberately set out to “scam” him.

[19] The outcome Mr PI sought was for:

• (a) a full refund of fees; and
  
• (b) interest on fees paid calculated at 15% monthly; and
  
• (c) compensation for damage suffered to his professional practice as a consequence of restrictions on his ability to practice not being removed; and
  
• (d) Mr SY to be prevented from continuing to practise as a lawyer.
  

[20] Mr SY responded to the complaint on 21 October 2021.

[21] He submitted that:

• (a) an appeal had been filed and a hearing of that appeal imminent at the time he took instructions from Mr PI; and
  
• (b) Mr PI’s instructions were to adopt a “broad brush” approach to challenging the Board’s findings; and
  

(c) he had made it clear to Mr PI from commencement that his prospects of success could not be guaranteed; and

(d) in addition to Mr PI being clearly informed of the difficulties his appeal faced, the effect and consequences of the concessions that his previous lawyer had made were reinforced to Mr PI; and

(e) the areas of the appeal in which Mr PI had no prospect of success had been clearly identified to him; and

• (f) attempts to directly negotiate outcomes with the Board had been frustrated by Mr PI’s confrontational interactions with the Board; and

• (g) despite cautionary advice to Mr PI explaining the difficulties that could be encountered in advancing a judicial review, Mr PI was emphatic in his instructions that he wished to proceed with a review; and
  
  • (h) time spent on the matter had considerably exceeded the fee charged, and he had determined not to seek to recover further fees incurred, this despite the fact he had incurred costs from parties consulted on behalf of Mr PI; and
    
  • (i) he had practised in common law in the District Court and High Court for in excess of 40 years and the management of the District Court appeal fell comfortably within his expertise and experience.
    

[22] Mr PI provided a response to Mr SY’s reply to his complaint on 9 November 2021. Mr PI submitted that:

• (a) Mr SY had held himself out to be the best qualified lawyer in [City E] to conduct an appeal of the Board’s decision; and
  
• (b) despite that, Mr SY did not have experience in [redacted] law; and
  
• (c) Mr SY should have advised him at commencement that the viable legal option was to proceed a judicial review; and
  
• (d) Mr SY had conceded that he was not familiar with the relevant case law; and
  
• (e) Mr SY had been responsible for the delay in obtaining the file from his previous lawyer; and
  
• (f) Mr SY failed to recognise that the relationship between himself and the Board was polarised, and it should have been apparent to him that there was minimal prospect of the Board agreeing to concessions; and
  
• (g) Mr SY should have recommended abandoning the District Court appeal at commencement; and
  
• (h) fees charged were excessive; and
  
• (i) Mr SY had failed to respond to emails dispatched to him.
  

[23] The Standards Committee issued the parties with a notice of hearing on 24 March 2022.

[24] Amongst the issues the Committee invited the parties to provide response to, were:

• (a) whether Mr SY had acted competently and in a timely way in accordance with r 3 of the conduct rules;1 and
  
• (b) whether, in accepting instructions to act in a District Court appeal under the [redacted] Act, the instructions fell outside Mr SY’s normal field of practice; and
  
  • (c) whether fees rendered were fair and reasonable.
    

[25] Mr SY provided a response to the Committee’s notice of hearing on 14 April 2022.

[26] To the extent his response addressed the issues identified above, Mr SY submitted that:

• (a) he had, in his 45 years of practice, regularly conducted litigation in the District and High Courts; and
  
• (b) the instructions received did not fall outside his normal field of practice; and
  
• (c) he had made it clear to Mr PI at the outset, that there were difficulties with the appeal; and
  
• (d) Mr PI had been “forceful and opinionated” as to the steps which he wished to have taken on his behalf; and
  
• (e) fees charged were fair and reasonable.
  

[27] Mr PI indicated that he did not wish to provide a response to the notice of hearing.

[28] After completing its initial investigation, (prior to issuing its decision) the Committee had concerns as to whether fees charged by Mr SY were fair and reasonable, and in particular, whether it was reasonable of Mr SY to rely on the $20,000 flat fee charged in circumstances where the appeal had not proceeded.

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

[29] The Committee made request of Mr SY to provide a more detailed breakdown of time spent, and all to distinguish the time that had been spent on the District Court Appeal and in preparation for the proposed judicial review.

[30] In responding to that request, Mr SY advised that:

• (a) the Committee was correct in concluding that the fee charged had covered work on time involved in both proceeding the appeal and for attendances in respect to the proposed judicial review; and
  

(b) his original brief had seamlessly “morphed” into preparation for the judicial review; and

(c) he had been in constant contact with Mr PI; and

• (d) considerable time and effort had been put into preparing for the judicial review; and
  

(e) at the time of preparing his invoice, time involved in acting for Mr PI exceeded $20,000 plus GST, but as Mr PI had paid that sum and was planning to leave the country, he was prepared to accept that figure; and

• (f) substantial preparation and time was involved in preparing for the judicial review, this work proceeding up until 20 September 2021; and
  

(g) total emails alone sent and received were in excess of 200, and significant time was expended in telephone attendances on Mr PI and other counsel involved, reading the file and examining the evidence; and

• (h) the time and responsibility incurred far exceeded the $20,000 plus GST that had been charged.
  

[31] Mr PI provided a response to Mr SY’s submission.

[32] It was Mr PI’s view, that:

• (a) Mr SY had contradicted himself in suggesting that the invoice rendered was intended to include work in respect to the judicial review; and
  
• (b) it was impossible for Mr SY to submit that time spent on the matter if fully calculated, would have resulted in an account which exceeded the fee charged, as his failure to keep time records rendered it impossible for Mr SY to calculate time that had been spent; and

(c) Mr SY had been unable to provide the Committee with evidence of the work he had undertaken to support the fee that had been charged by him.

[33] The minutes of the Standards Committee’s meeting of 21 November 2022, indicate that the Committee was concerned that Mr SY appeared to have retrospectively justified the fee charged on the basis of work done after the District Court appeal was withdrawn. In noting that Mr SY had indicated that he had undertaken more than 35 hours work on the matters, the Committee observed that a $20,000 fee divided by 35 hours, provided for a charge out rate of $571 per hour, while 35 hours at the rate of $450 an hour, amounted to $15,750.

[34] The Committee concluded that a fee of $15,750 would be fair and reasonable in the circumstances.

[35] The Committee wrote to the parties explaining as to how it had reached conclusion that a fee of $15,750 (plus GST and disbursements) would be reasonable, and invited comments.

[36] Mr SY responded with indication that whilst he did not necessarily agree with all aspects of the Committee’s approach, in the interest of having matters resolved, he would agree to the Committee’s proposal.

[37] Mr PI was less receptive. It was his view that Mr SY had failed to provide honest account as to how the fee had been calculated. He did not agree that Mr SY would have spent around 35 hours on his case. He did not consider that he had been competently represented. To the best of his recollection, he could only recall one occasion on which Mr SY had forwarded correspondence to him. He did not consider that it was open to Mr SY to charge him anything.

[38] The Standards Committee distilled the elements of Mr PI’s complaint, as being complaint that:

• (a) Mr SY had insufficient expertise to conduct the appeal and was not familiar with the relevant case law in the area; and
  
• (b) Mr SY had mistakenly held himself out as the “best lawyer in [City E]” to advance the appeal; and
  
• (c) fees charged were excessive as the District Court appeal had not been progressed; and
  
• (d) Mr SY should not have been charging an additional $30,000 for judicial review proceedings in the circumstances, and the fee quoted for the

judicial review work was excessive in comparison to what other lawyers had indicated would be a reasonable fee for the work required; and

(e) Mr SY had set out to deliberately “scam” him.

[39] The Standards Committee delivered its decision on 14 February 2023.

[40] The Committee determined, pursuant to s 152(2)(c) of the Lawyers and Conveyancers Act 2006 (the Act) that no further action on the complaint was necessary or appropriate.

[41] In reaching that decision the Committee concluded that:

• (a) the initial letter of engagement issued by Mr SY met the requirements of r 3.4; and
  
• (b) whilst there had been some delay in obtaining the file from Mr PI’s previous lawyer, Mr SY had provided reasonable explanation for the delay, and the delay was of insufficient consequence to prejudice Mr PI; and
  
• (c) Mr SY had provided Mr PI with comprehensive advice in respect to key elements of the instructions received; and
  
• (d) Mr SY had acted competently and in a timely way throughout; and
  
• (e) having considered the relevant conduct rules, the responses received from the parties in respect of the Committees suggestion that the fee be set at $15,750 (plus GST), and Mr SY’s decision to reduce his fee, no further action was required in respect to complaint that fees charged were fair and reasonable; and
  
• (f) funds received by Mr SY had, as required, been lodged to his firm’s trust account.
  

Application for review

[42] Mr PI filed an application for review on 22 March 2023.

[43] He submits that:

• (a) Mr SY had failed to act competently; and

• (b) he had failed to identify at commencement, the limitations of the appeal that had been filed; and
  
  • (c) counsel for the opposing party had alerted Mr SY to the relevant case law which had significant consequence for the jurisdiction issue; and
    

(d) as the appeal filed did not serve its purpose, Mr SY could not charge for services rendered in respect to the appeal; and

• (e) Mr SY had failed to respond promptly to the majority of emails forwarded to him; and
  
• (f) he did not consider that Mr SY had spent 35 hours on his case, given that he had only spoken to Mr SY on the phone for approximately 15 minutes, and had only received a single item of correspondence from him; and
  
• (g) Mr SY had held himself out as the “best lawyer in [City E]” to conduct his case, but clearly did not have experience with the [redacted] Act, as evidenced by his lack of familiarity with the relevant case law; and
  
• (h) Mr SY had misled the Standards Committee on numerous occasions.
  

[44] By way of outcome, Mr PI sought a full refund of fees paid and for Mr SY to be sanctioned for what Mr PI considered had been serious misconduct.

[45] Mr SY provided a brief response to Mr PI’s review application on 3 May 2023. He considered that the Standards Committee had conducted a thorough and exhaustive investigation, and that the decision delivered, reflected a carefully reasoned determination.

[46] It was Mr SY’s view, that the steps taken by Mr PI to provide his bank details to the Standards Committee (this to allow fees to be refunded in the sum as proposed by the Committee) reflected acquiescence and acceptance by Mr PI to the Committee’s findings, and therefore precluded Mr PI from taking any further steps in respect of his complaints. Mr SY did not consider that Mr PI had provided any fresh information on review. He considered that the review grounds advanced simply replicated the arguments that had been previously put to the Standards Committee.

[47] Mr PI rejected suggestion that he had, in providing details of his bank account to the Standards Committee, agreed to the Committee’s proposal. He had provided details of his account after receiving the decision from the Standards Committee.

Review on the papers

[48] This review has been undertaken on the papers pursuant to s 206(2) of the Act, which allows a Legal Complaints Review Officer (LCRO) to conduct the review on the basis of all information available if the LCRO considers that the review can be adequately determined in the absence of the parties.

[49] 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

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

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

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

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

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

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

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

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

[52] 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:

• (a) Consider all of the available material afresh, including the Committee’s decision; and
  
• (b) Provide an independent opinion based on those materials.
  

Discussion

[53] The Standards Committee decision addressed questions as to whether the initial letter of engagement Mr SY had provided to Mr PI was satisfactory, and whether Mr SY met his obligation to deposit funds received to his trust account.

[54] I agree with the Committee’s findings in respect to both issues, and do not need to address them further here.

[55] The two matters that are at the heart of this review (and the issues are to a degree inter-connected) is the question as to whether Mr SY had competently represented Mr PI, and question as to whether fees charged were fair and reasonable. The issues are closely connected, as it is Mr PI’s contention, that Mr SY is not entitled to charge any fees for the services provided as the advice provided by Mr SY was unsound.

Did Mr SY act competently and diligently as required by r 3?

[56] Rule 3 of the Rules notes that “in providing regulated services to a client, a lawyer must always act competently and in a timely manner consistent with the terms of the retainer and the duty to take reasonable care”.

[57] At the nub of Mr PI’s complaint that Mr SY had failed to competently represent him, was accusation that Mr SY had limited experience of the [redacted] Act, and that as a consequence, Mr SY had failed to understand and appreciate the limited grounds on which an appeal could be advanced.

[58] Mr SY’s lack of experience was, says Mr PI, particularly egregious in the face of the representations he says that Mr SY had made at commencement that he (Mr SY) was the lawyer best equipped in the [City E] region to manage the appeal.

[59] Mr SY does not, in the submissions I have perused, directly address argument that he had held himself out to Mr PI in such lofty terms.

[60] Mr PI says that he had initially been given Mr SY’s name as a person to contact, as he had been told that Mr SY would be able to recommend a suitable lawyer to conduct his appeal.

[61] That presents as somewhat at odds with Mr PI’s correspondence to his former lawyer (Ms LK) of 5 May 2021, in which he advised Ms LK, that he had “... found a [City E] lawyer who was willing to take on my case after he was recommended to me by two [specialists] during my today’s lunch with them”.

[62] It is difficult to establish definitively what had or had not been said in the discussions between Mr SY and Mr PI that preceded the commencement of the retainer, but the relevant question is whether Mr SY had the necessary experience to conduct the appeal.

[63] The Standards Committee noted that Mr SY had a significant background and experience in conducting appeals.

[64] He had been in practice for over forty years and in that time had conducted a number of appeals in the District and High Court jurisdictions.

[65] I agree with the Committee, that a background of that significance, would have amply equipped Mr SY with a sound understanding of the appellate process. But it is the case there are niche areas of the law where specialist expertise and experience is required.

[66] It is approaching the trite to emphasise that where consideration is given to commencing an appeal, it is of fundamental importance that the lawyer is able to advise the client as to the scope of the appeal, and, in particular, whether there are any jurisdictional impediments to advancing the appeal.

[67] It is self-evidently pointless for a lawyer to engage a client’s resources in advancing an impotent appeal.

[68] And there were limitations on Mr PI’s ability to address, in the District Court, all the matters he wished to have challenged.

[69] The District Court had no jurisdiction to consider the Board’s order of 2 November 2020 directing that Mr PI attend a competence programme and undertake an examination.

[70] Mr PI’s options, if he wished to challenge those orders, was to seek a judicial review.

[71] The District Court did have jurisdiction to consider the Board’s order of 12 February 2021, which had imposed a supervision requirement.

[72] Mr PI’s criticism that he had been poorly advised as to the limitation of his appellate rights, have to be considered from the context that it was not Mr SY who had been initially instructed to file the appeal.

[73] Ms LK had filed the appeal.

[74] Mr PI says he had very little contact with Ms LK, but it can be reasonably assumed that when Mr PI first instructed Ms LK he would have:

• (a) provided her with a full understanding of the background to his dispute with the New Zealand [Specialist] Board; and
  
• (b) provided Ms LK with a full account of the concerns he had with decisions made by the Board that had affected his capacity to practice; and
  
• (c) identified the deficiencies in the Board’s processes and its determinations that he considered provided fertile ground for challenge.
  

[75] The notice of appeal filed by Ms LK, sought to set aside the following orders made by the Board:

• (a) the order dated 2 November 2018 requiring him to complete a competence programme and an examination under s 38 of the [redacted]

Act; and

(b) the order dated 12 February 2021 imposing a condition on his scope of practice under s 39(2)(b)(ii) of the [redacted] Act requiring him to work under the supervision of a Board appointed supervisor.

[76] In correspondence to the Board, on 4 March 2021, Ms LK clarified that Mr PI would only be seeking to challenge the order requiring him to complete an examination, and that he had accepted that supervision by a Board appointed supervisor was appropriate.

[77] In further correspondence to the Board of 8 April 2021, Ms LK proposed that the appeal be withdrawn on receipt of confirmation from the Board that Mr PI would not be required to undertake an examination, and that any period of supervision would run from the date of the appointment of an appropriate supervisor.

[78] It appears to be the case, that Mr PI, whilst he had initially accepted advice from Ms LK that the order directing supervision would not be challenged, reconsidered his position.

[79] In correspondence to Mr PI of 7 April 2021, Ms LK informed Mr PI that she was concerned that they were “going over old ground”. She confirmed that she had made it clear that having conceded that supervision was appropriate, there was no basis to argue a different position on appeal.

[80] Mr SY took instructions in early May 2021.

[81] When taking those instructions, Mr SY had perused some documentation that had been forwarded to him by Mr PI but had not had opportunity to review Ms LK’s file.

[82] When taking instructions, Mr SY asked Mr PI to clarify what his objectives were.

[83] Mr PI’s response was to advise Mr SY, that he wished to achieve “as much as possible”. He sought a determination from the District Court which would affirm that the Board’s processes had been corrupt. He sought compensation for loss of income, humiliation, loss of dignity, and injury to feelings.

[84] It took some time for Mr SY to obtain Ms LK’s file.

[85] He was initially provided with a digital copy of the file but had been unable to access all the material on the file.

[86] There were other factors that contributed to delay.

[87] Mr SY was absent from his office for a period of time on scheduled leave.

[88] Mr SY did not have opportunity to peruse the file until around 2 June 2021.

[89] But he had, prior to receipt of the file, advised Mr PI that a successful outcome on the appeal could not be guaranteed, and that he had little prospect of receiving compensation.

[90] On 19 May 2021, counsel for the Board (Mr WS) wrote to Ms LK.

[91] Mr WS had not, at this stage, been alerted to the fact that Mr PI had changed lawyers.

[92] Mr WS noted that Ms LK had, in her correspondence to him of 4 March 2021, clarified that Mr PI only sought to challenge the order requiring him to complete an

examination and that Mr PI was accepting of the fact that he would be required to undertake a period of supervision.

[93] Mr WS considered that there were elements of Mr PI’s claim, that fell outside the jurisdiction of the District Court to appeal.

[94] It was Mr WS’s view that Mr PI was not able to challenge the Board’s direction that he complete a competence programme and an examination.

[95] After receiving a copy of Mr WS’s 19 May correspondence, Mr SY remained confident that aspects of the Board’s decisions remained viable to appeal. He wrote to Mr WS on 2 June 2021 indicating that areas identified by Mr WS may not be open to appeal, but nevertheless recording his confidence that given that “para four of the notice of appeal filed in our matter is far-reaching, then it is the complete decision of the Board that is being appealed against, and that certainly falls within the jurisdiction of the District Court.”

[96] Mr PI shared Mr SY’s confidence. In correspondence to Mr SY of 19 May 2021, Mr PI had indicated that he was aware that the Board’s lawyers considered that the District Court lacked jurisdiction to hear the appeal, but Mr PI explained that he had read the relevant legislation and was confident that the imposition of conditions on the scope of a practitioner’s practice (including requirements for supervision or an exam) were matters that were open to be reviewed by the District Court.

[97] On 2 June 2021, Mr SY wrote to Mr PI. He noted that it appeared to be the case that Mr PI’s previous lawyer had conceded that the Board’s decision was accepted, and that it was only the order requiring Mr PI to undertake an examination that was being contested. Mr SY observed, that “we need to fix with precision exactly what it is that you wish to appeal against”.

[98] Mr PI promptly replied to Mr SY with indication that “no, in essence I object to everything: the supervision, the competence programme and the examination”.

[99] Mr SY sought advice on the scope of the appeal from two counsel.

[100] One responded with indication that he considered that the lawyer responsible for filing the appeal had erred. It was his view that the appropriate step that should have been taken at commencement, was to file judicial review proceedings. It was recommended to Mr SY that steps be taken to abandon the appeal, with efforts being made to avoid potential costs to Mr PI.

[101] The other counsel instructed, considered that one of the conditions that Mr PI sought to have challenged was capable of being addressed through the vehicle of a District Court appeal, but with caution that the grounds for challenge were limited.

[102] Mr SY spoke with Mr PI and explained the difficulties that had been identified with the appeal. He suggested that consideration be given to attempting to negotiate a settlement with the Board.

[103] Mr PI responded to Mr SY with indication that he understood the rationale behind the approach that Mr SY was suggesting, but he emphasised that his desired outcome was to achieve “justice”.

[104] After reflecting on matters, Mr PI agreed that the best approach would be to file a judicial review. He considered that a review by the High Court would, if a favourable outcome was achieved, expose the corruption that he had believed he had been the victim of.

[105] Mr PI followed up with further correspondence to Mr SY in which he confirmed his view that he considered a judicial review would be in his best interests.

[106] On review, Mr PI takes the position that Mr SY should have immediately advised him at the commencement of the retainer, that his appeal had little prospect of success.

[107] His failure to do so, argues Mr PI, had consequence of him expending significant funds on an appeal process that could go nowhere.

[108] With respect to Mr PI, I do not consider that this argument, seemingly straightforward when approached with the benefit of hindsight analysis, provides a full account of the circumstances that confronted Mr SY. It is an account that also, in my view, fails to give sufficient attention to the approach Mr PI had consistently adopted in his dealings with the Board.

[109] Mr PI’s criticism of Mr SY’s actions overlook the significant influence of his intense approach and unwavering determination to pursue specific options. Throughout the course of the retainer, Mr PI demonstrated a fervent commitment to particular strategies. He was pressing Mr SY to follow a path that aligned closely with what Mr PI perceived to be his objectives and perspectives. The intensity of this strong-willed stance inevitably shaped the course of the instructions.

[110] Mr PI’s firmly held views and unwavering determination to maintain his positions, significantly restricted the range of options available in the legal proceedings.

• [111] His deeply held conviction that Board members and individuals associated with the Board were corrupt, incompetent, and prejudiced towards him, inevitably meant that alternative options open to settle the dispute (for example mediation/negotiation) were unable to be explored.
  
  • [112] Importantly, Mr SY did not file the appeal.
    
  • [113] As noted, it could reasonably be assumed that Mr PI had been fully briefed by his first lawyer as to the possible limitations of the appeal process.
    
  • [114] The communications between Mr PI and Ms LK, give clear indication that an appeal was to be pursued on limited grounds.
    
  • [115] And Mr PI had agreed to make concessions.
    
  • [116] As noted, Ms LK had expressed concerns to Mr PI when he signalled to her that he was reconsidering the concessions that had been made and expressing a preference that the appeal be progressed across a border front.
    
  • [117] Mr SY did not have the full file when he first took instructions.
    
  • [118] And it took some time for him to secure the file.
    
  • [119] I do not consider that Mr SY was fully aware of the limitations of the appeal process when he first took instructions, but when alerted to potential problems, he took steps to obtain advice.
    
  • [120] This is not a reflection of a lack of competence.
    
  • [121] It is not uncommon for experienced and capable lawyers to consult colleagues on matters in which there is diverging opinion.
    
  • [122] And it was not the case that there were no grounds to continue with the appeal.
    
  • [123] Counsel consulted by Mr SY provided differing views as to the potential scope of the appeal.
    
  • [124] But it became readily apparent that pursuing an appeal would not have prospect of resulting in a decision that exposed the deep-seated corruption that Mr PI was convinced had tainted the Board’s dealings with him.
    
  • [125] Counsel consulted by Mr SY agreed that advancing a judicial review would provide Mr PI with better prospect of exposing the procedural flaws that Mr PI considered had permeated the Board’s processes and would provide better opportunity to expose

the ethical and professional failings of the Board members that Mr PI believed had contaminated the Board’s decision-making process.

[126] Mr PI was in agreement with the decision to change tack.

[127] Mr PI emailed Mr SY on Sunday, 13 June 2021. In that email he said this:

I have had a think about the situation and I have come to the conclusion that a judicial review by the High Court will be in my best interest. As the competence review process has been that corrupt, I cannot imagine that a reasonable judge would not rule in my favour. If the judge would rule in my favour, this would instantly make me a “famous” [specialist] and my practice could significantly capitalise on this. Furthermore, both the corrupt [redact] as well as the corrupt members of the [redact] committee would be publicly known as corrupt and their professional future would be non-existent. More so, my name would be completely cleared.

[128] At the time that attention was being paid to pursuing an appeal, and consideration was being given to the possibility of commencing judicial review proceedings, Mr PI was continuing to engage directly with the Board.

[129] Mr PI was consistently raising objections to the Board’s recommendations for appropriate supervisors.

[130] Mr SY was copied into this extensive raft of correspondence.

[131] Mr PI’s persistent objections to proposed pathways forward would inevitably have clouded the decision-making progress. The objections introduced additional layers of complexity and uncertainty and would have made it difficult to settle on a clear and decisive course of action.

[132] It is understood that Mr PI’s concerns with the Board’s recommendations were founded in a deep-seated mistrust of the Board and his firm belief that the Board had not, and was not, capable of acting in good faith.

[133] But this all contributed to a degree of uncertainty as to the steps that Mr PI wished to pursue.

[134] On review, Mr PI complains that Mr SY “made me sign an agreement that he would prepare and conduct my appeal in the District Court. It was, however made clear to him right from the beginning that I wanted to appeal against “everything” which could only be done through the High Court”.

[135] The evidence on the Standards Committee file would not indicate that Mr PI’s instructions were as starkly and concisely provided as he now suggests they were.

[136] Mr SY did not make Mr PI sign an agreement that he would conduct an appeal.

[137] Mr SY required of Mr PI (as do many lawyers in similar circumstances) that Mr PI deposit funds to Mr SY’s trust account at the commencement of the retainer.

[138] After examining the circumstances in which Mr SY was instructed, the steps taken by Mr SY, and the instructions provided by Mr PI, I am satisfied, as was the Standards Committee, that the advice Mr SY had provided throughout regarding both the District Court appeal and proposed judicial review proceedings, was sensible, realistic, strategic and in Mr PI’s interests.

[139] In reaching that view, I pay particular account to the following:

• (a) Mr PI had received advice on his legal options from the lawyer who had filed the appeal; and
  
• (b) Mr PI was aware, prior to instructing Mr SY, of the concessions that had been made by the lawyer who had filed the appeal, and the limited basis on which that lawyer was prepared to progress the appeal; and
  
• (c) Mr SY had alerted Mr PI to the fact that successful outcome could not be guaranteed, and advised Mr PI that achieving a compensation award would be improbable; and
  
• (d) there were ongoing discussions between Mr SY and Mr PI regarding the progressing of the appeal and alternative options; and
  
• (e) delay in receiving the full file would have inevitably impeded Mr SY’s ability to provide a full overview of the issues; and
  
• (f) Mr PI’s continuing direct involvement with the Board bought a degree of uncertainty to the decision as to what legal remedies would be required to achieve the outcomes Mr PI sought; and
  
  • (g) there was only modest delay in the time from which Mr SY received instructions to pursue the appeal, to the time a firm decision was made to abandon the appeal and proceed a judicial review; and
    
  • (h) work completed in respect to the appeal was readily transferable to the judicial review work and would have been required to have been completed if a judicial review was undertaken.
    

[140] I am satisfied that Mr SY had acted competently and in a timely way throughout.

Were the fees charged fair and reasonable?

[141] Mr SY could have managed some aspects of Mr PI’s file more efficiently.

[142] He did not keep time records.

[143] He explained that he did not do so as he had provided Mr PI with a firm estimate for proceeding the appeal.

[144] That may have been the case, but he did not progress the appeal. A calculation of costs that had been incurred would have been assisted if Mr SY had been able to reference the work he said had been undertaken to time records.

[145] Mr PI made request of Mr SY on 20 September 2021 to provide him with an invoice. Mr PI informed Mr SY that it was his intention to relocate to [Country A] in the near future.

[146] Mr SY provided his invoice to Mr PI the following day.

[147] Mr PI’s invoice was headed “Appeal from the decision of the New Zealand [Specialist] Board”.

[148] The notation to Mr SY’s invoice recorded work both spent on the appeal, and work undertaken in liaising with the Board, reviewing information, and preparing the judicial review.

[149] On forwarding his invoice, Mr SY made request of Mr PI to clarify as to whether he wished to continue with the judicial review application.

[150] The Committee expressed concern that Mr SY had failed to keep time records.

[151] Request was made of Mr SY to provide a more particularised breakdown of time spent, this with purpose to ascertain the division of time apportioned between the appeal and judicial review work.

[152] In responding to the Committee’s request, Mr SY advised that the invoice rendered was intended to cover work done on the District Court appeal, as well as work completed in preparation for the judicial review. Mr SY stated that this approach was consistent with the instructions received from Mr PI.

[153] Mr SY had made request of Mr PI to execute a fresh letter of engagement for the judicial review matter which Mr PI had proceeded to do.

[154] Mr SY explained that his brief in respect to the appeal had seamlessly “morphed” into work undertaken for the judicial review.

[155] Whilst concerned that Mr SY appeared to be retrospectively justifying the fee charged on the basis of argument that the fee covered both the appeal and judicial review work, the Committee concluded that Mr SY’s estimate of 35 hours work having been undertaken was reasonable, and that it would consider a fee of $15,750 to be fair and reasonable in the circumstances for the work that had been completed.

[156] The Committee advised Mr SY and Mr PI of the view it had reached and invited them to comment.

[157] Mr SY indicated that he was prepared, in the interests of bringing finality to matters, to agree to the Committee’s recommendation. Mr PI did not agree with the Committee’s suggestion. Mr PI believed that no fees should have been charged.

[158] The Committee concluded that its concerns regarding Mr SY’s billing processes were adequately addressed by his decision to voluntarily reduce his fee to $15,750 plus GST. That assessment was informed from the context of the Committee having scrutinised Mr SY’s file.

[159] When the Committee delivered its decision, it made request of Mr PI to provide Mr SY with details of his bank account so that he could facilitate the repayment of funds.

[160] Mr SY submits that the steps that had been taken to refund monies held to Mr PI, (Mr PI having provided Mr SY with details of his bank account) presented as acquiescence on Mr PI’s part to the Committee’s determination of the fee issue.

[161] I do not agree.

[162] When invited to comment on the proposed reduction, Mr PI made it clear that he did not accept the Committee’s proposal. His indication that he considered he was not liable for any fees, presented as a clear rejection of the Committee’s fee suggestion.

[163] The Committee having determined that Mr SY was required to refund a portion of fees paid to Mr PI, it was understandable that Mr PI would provide Mr SY with his bank details that would enable Mr SY to facilitate the Committee’s direction. But it was not the case that Mr PI was, in providing those details, indicating his acquiescence to the Committee’s determination.

[164] I am required to consider the fee issue afresh.

[165] In doing so, I note that the Committee was satisfied that its membership included Committee members who had experience in civil litigation.

[166] It has been recognised that determining a reasonable fee “is an exercise in assessment, an exercise in balanced judgement, not an arithmetical calculation”.4

[167] Attention then turns to the fee factors required to be addressed under r 9 of the Rules.

[168] Importantly, before addressing the specific fee factors, r 9 alerts lawyers to the requirement that their fee be both fair and reasonable for the services provided, and that the fee be calculated with regard to the interests of both client and lawyer as well as the factors set out in r 9.1.
[169] The factors set out in r 9.1 are:

Reasonable fee factors

(a) the time and labour expended:

(b) the skill, specialised knowledge, and responsibility required to perform the services properly:

(c) the importance of the matter to the client and the results achieved:

(d) the urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by the client:

(e) the degree of risk assumed by the lawyer in undertaking the services, including the amount or value of any property involved:

(f) the complexity of the matter and the difficulty or novelty of the questions involved:

(g) the experience, reputation, and ability of the lawyer:

(h) the possibility that the acceptance of the particular retainer will preclude engagement of the lawyer by other clients:

(i) whether the fee is fixed or conditional (whether in litigation or otherwise):

(j) any quote or estimate of fees given by the lawyer:

(k) any fee agreement (including a conditional fee agreement) entered into between the lawyer and the client:

(l) the reasonable costs of running a practice:

(m) the fee customarily charged in the market and locality for similar legal services.

4 Property and Reversionary Investment Corp Ltd v Secretary for State of the Environment [1975] 1 WLR 1504 (QB).

[170] The fee factors set out in r 9.1 provide useful guidance to the matters to be considered, but some of the fee factors will assume more relevance than others.

[171] I agree with the Standards Committee, that rr 9.1(a), (b), (c), (d), (i) and (k) are of particular relevance.

[172] Mr SY had considerable experience in litigation.

[173] The matters were clearly of considerable importance to Mr PI. His ability to work, and the maintenance of his professional reputation, were at stake.

[174] Mr PI’s communications with the Board illustrated a relentless and assertive determination to seek justice for what he considered had been egregious affronts to his reputation. His correspondence vividly conveyed the depth of his feelings and his profound sense of mistrust of the Board’s actions. For Mr PI, the legal battle was not merely about resolving the dispute, it was a fight to defend his reputation against what he perceived to have been meritless and baseless attacks. Mr PI considered that these attacks struck at the heart of his professional integrity and his competence as a [specialist].

[175] Overarching his concerns, was a determination to expose the widespread corruption he considered he had uncovered.

[176] The r 9.1(c) (importance of matter to the client), r 9.1(d) (urgency in circumstances in which the retainer was undertaken) and r 9.1(f) (complexity of the matter and difficulty in novelty of the questions involved), were, in my view, significant factors for this retainer.

[177] It is clear that Mr SY had a significant amount of information to manage.

[178] He says, that in the course of the retainer, Mr PI had forwarded him over 200 emails.

[179] The material on the Standards Committee file indicates that Mr SY was receiving a substantial amount of information from Mr PI.

[180] One of the practical difficulties Mr SY faced, was, that throughout the course of the retainer, Mr PI continued to engage directly with the Board. Those communications were frequent and comprehensive.

[181] The battle was being waged on more than one front.

[182] It was understandable that Mr SY felt it unhelpful for Mr PI’s cause that Mr PI persisted in engaging directly with the Board. It was Mr SY’s view that the confrontational

nature of Mr PI’s communications were not helpful, and in fact, diminishing possibility of exploring alternative outcomes with the Board.

[183] The issues were complex.

[184] There was a substantial amount of correspondence and professional material to review.

[185] I am satisfied, as was the Standards Committee, Mr SY had spent a significant amount of time communicating with Mr PI, with counsel, and in researching options available to Mr PI.

[186] Calculating fees is not, as has been noted, an exact science.

[187] In this instance, whilst I am required, as has been noted, to consider the fee issue afresh, I do not discount the approach the Standards Committee adopted when investigating this particular fee complaint.

[188] I agree with the Standards Committee, that the fee initially charged by Mr SY (if that was to cover attendances relating to the appeal work only), would not have been fair and reasonable.

[189] But I am satisfied (as was the Standards Committee) that if the fee rendered was to include work completed on the judicial review (which Mr SY latterly confirmed it was) than the fee could more arguably be justified as fair and reasonable.

[190] I agree with the Standard Committee’s decision to reduce the fee.

[191] Having carefully considered:

• (a) the requirement that a fee be fair and reasonable by reference to both the interests of the lawyer and the parties; and
  
• (b) the approach Mr PI brought to the litigation; and
  
• (c) the circumstances in which the appeal was commenced, advanced, and subsequently withdrawn, and
  
• (d) the nature of the issues raised by Mr PI’s dispute with the [Specialist] Board, the variety of issues traversed by that dispute, the approach adopted by Mr PI in his dealings with the Board; and the voluminous information required to be analysed by Mr SY; and

• (e) the clear indication that problems with the appeal were identified for Mr PI prior to the file arriving with Mr SY, and
  • (f) the early indication that a judicial review would likely be filed: and
    
  • (g) the fact that work completed in respect of the appeal was work that transferred seamlessly to work on the judicial review file;
    
  
  

I conclude that the fee determined by the Standards Committee, presented as a fair and reasonable fee.

[192] I see no grounds which could persuade me to depart from the Committee’s finding.

Anonymised publication

[193] 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 211(1)(a) of the Lawyers and Conveyancers Act 2006 the decision of the Standards Committee is confirmed.

DATED this 27TH day of June 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 PI as the Applicant

Mr SY as the Respondent [Area] Standards Committee [X] New Zealand Law Society