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VO v Law Firm A [2025] NZLCRO 49 (16 April 2025)

Last Updated: 8 May 2025

LEGAL COMPLAINTS REVIEW OFFICER

ĀPIHA AROTAKE AMUAMU Ā-TURE
Ref: LCRO 61/2024
CONCERNING
an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND

CONCERNING
a decision of the [Area] Standards Committee

BETWEEN
VO and EO

Applicants

AND
LAW FIRM A, OW, PN, EW, WR
and VK

Respondents

DECISION

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

Introduction


[1] The applicants have applied for review of a determination of the [Area] Standards Committee (the Committee) dated 29 April 2024 to take no further action on their complaint about the professional conduct of the respondents.

[2] I will refer to the first-named applicant as “the applicant” and the second-named applicant as “the company”. The applicant was the sole shareholder and director of the company. Its actions are his actions.1

1 Defined terms (the company, the firm, the father, the brother etc.) are used in this decision to facilitate its publication in anonymised form. No disrespect to any person is intended.


[3] The first-named respondent is an incorporated law firm (the firm). The other respondents were either the directors of the firm at the relevant time or employed solicitors involved in some aspect of the firm’s relevant work. The complaint is essentially against the firm. With one exception, the respective roles of its personnel are of peripheral relevance.

What gave rise to the complaint?


[4] The complaint derives from entrenched family discord. The applicant and his brother, KO (the brother), were two sons of EO (the father). The applicant and the father lived in New Zealand. The brother lived in [Country].

[5] In 2012, the father settled a trust (the Trust), with the company as sole trustee, and transferred ownership of his home to it.

[6] Under the trust deed, the father was the “Principal Beneficiary” of the “Primary Beneficiaries” as well as the “Protector”. As Protector, he had the right to require information from the trustee and various powers including the power to appoint and remove trustees.

[7] The applicant and the brother were the “Class B Primary Beneficiaries” and jointly the “Subsequent Protector”. Circumstances in which they jointly were deemed to assume the role of Protector included the mental incapacity or death of the father. The father’s grandchildren comprised a third tier of Primary Beneficiaries.

[8] The trustee had the power to vary the terms of the trust deed by deed subject to certain basic restrictions including compliance with “Proper Law”, which was defined.

[9] The trust deed contained a reasonably stringent confidentiality provision. A beneficiary, in that capacity, was entitled to information only about his or her beneficiary account. This restriction did not apply to the Protector.

[10] The relationship between the brothers was poor. The applicant ascribed this to religious differences. He described the relationship as being characterised by the brother’s antagonism towards him. The correspondence available to me evidences the applicant’s mistrust of and hostility towards the brother. The brother’s correspondence is dispassionate. In any event, they did not get on.

[11] In late 2018 or early 2019, at an advanced age and in declining health, the father decided to move to [Country] to live with the brother. Once resident in [Country], he

would cease to be eligible for New Zealand superannuation. He wished to apply for the [Country] Age Pension (the [X]AP).


[12] The applicant apparently provided the father with some documentation to support an [X]AP application in April 2019. Whether the father made an [X]AP application at that time is unclear from the materials. It seems that he did not take with him to [Country] the documents the applicant had provided.

[13] From no later than October 2019, the brother sought to help the father complete an [X]AP application. The [Country] governmental agency responsible for this process, [Government agency], required certain basic information about the Trust and the father’s interest in it, including the primary trust documents. It seems the brother had not been aware of the existence of the Trust before this.

[14] The father did not have the information or the documents. The brother forwarded the relevant form to the applicant for him to complete and asked him to provide the documents to the father. The father returned to New Zealand with the brother for a visit in October 2019, at which time the brother asked the applicant to provide the documents directly to the father.

[15] The applicant refused to provide any information or documents to either the brother or the father. He did so in correspondence that expressed his hostility towards the brother, his opposition to the father moving to live with the brother and his unwillingness by then to facilitate any attempt to obtain the [X]AP.

[16] The brother eventually obtained a copy of the trust deed from the firm that prepared it. In February 2020, further request was made for the information required by [Government agency]. This comprised tax returns and Trust minutes since its establishment and confirmation that it continued to operate. He cited provisions of the trust deed entitling the father to that information. The applicant refused to provide the information.

[17] A few days later, the applicant caused the company to execute two deeds he prepared himself. The effect or purported effect of the first deed was to remove the Protector’s power to remove and appoint trustees. The effect or purported effect of the second deed was to vest the power of appointment and removal of trustees in the trustees (the company being the sole trustee).

[18] The applicant took these steps without legal advice as to whether they complied with “Proper Law”. He did not inform the father or the brother of what he had done.

[19] In December 2020, the company sold the Trust’s asset, the father’s former home. The applicant did not inform the father or the brother of the sale.

[20] In January 2021, the Trusts Act 2019 came into force. This legislation introduced a right of beneficiaries to request certain types of trust information.

[21] In March 2021, the brother, on behalf of the father, engaged the firm to advise the father. The firm issued a letter of engagement to the father. In May 2021, it wrote to the first applicant requesting the information the father had requested in February 2020 and an accounting of the property sale.

[22] The applicant responded a month later refusing to recognise that the firm had authority to act for the father, requesting evidence of its authority, asserting that the father was acting under the brother’s influence and requesting evidence that the firm was not acting for the brother. He ignored the request for information about the Trust and the sale of the home.

[23] The firm then wrote to the father’s [Country] GP. In doing so, it gave the GP an explanation of the legal issues relating to the Trust and the [X]AP application and requested that the GP assess the father’s competency, capacity and understanding of those issues. It asked that the GP do so with the father alone, without any family members being present.

[24] The firm had recommended to the father that he replace the company as trustee with a trustee company ([Company 3]) co-owned by the firm and [Company 2], as an alternative to the father’s preference for the appointment of a friend and the brother as trustees. This was the primary aspect of the father’s understanding which the firm requested the GP to assess. It explained that it had advised the father of its concern that the applicant would not be co-operative in handing over control of the Trust to the brother if he was replaced by the brother as the person controlling it.

[25] The GP undertook an assessment. His report was surprisingly brief. It read:

[The father] presented for an assessment of his capacity to make decisions on behalf of his Trust matters. He has good insight into his situation and need for change in the Trustees. He also understands that this change will help him get his pension sorted.


[26] In July 2021, the father, in his capacity as Protector, executed a deed prepared by the firm removing or purporting to remove the company as trustee and appointing or purporting to appoint [Company 3] as trustee. The deed was witnessed by a Justice of the Peace. Neither the father nor the firm was aware at that time that the applicant had

removed or purported to remove the Protector’s power of removal and appointment of trustees 17 months earlier.


[27] The firm immediately wrote to the applicant. With reference to his challenge to its authority, the firm wrote:
  1. We have taken instructions from [the father] in respect of the Trust over the phone, independently of [the brother]. We have direct authority from [the father] to correspond with [the brother] about the Trust, however we take our instructions from [the father] and we do not act for [the brother].
  2. We have also obtained a capacity assessment for [the father] from [his] doctor, specifically in respect of [the father’s] capacity to make decisions relating to the Trust and the trustees. [The father’s] doctor has confirmed that [the father] has capacity to make these decisions and that he is making the decisions of his own free will.

[28] It proceeded to advise the applicant of the appointment of [Company 3] as trustee, advised that the brother had no involvement and confirmed that [Company 3] would continue to take instructions from the father as settlor, Protector and Principal Beneficiary.

[29] The letter then set out requirements for the transfer of Trust documents and assets to [Company 3] and concluded with an intimation of court proceedings in the event of delay or the discovery of misappropriation of assets or breach of trust.

[30] The applicant promptly responded with an allegation that the attempt to remove the company as trustee was an act of, or attempt to commit, fraud and reiterated his refusal to provide any Trust documents or information. The firm then provided a copy of the documentation by which [Company 3] was appointed trustee and again requested the Trust documents.

[31] At this point, the applicant engaged lawyers. His lawyers responded with a copy of the February 2020 deeds purportedly removing the Protector’s power of removal and appointment, information about the net proceeds of sale of the property and advice that the funds were held in a bank account of the Trust. This was in September 2021.

[32] Further lawyers’ correspondence ensued involving competing allegations of invalidity of the other’s party’s removal and appointment documentation and allegations by the applicant of the father’s mental incapacity.

[33] The applicant consistently refused the firm’s requests for the information required by [Government agency] to progress the father’s [X]AP application. His lawyers also asserted variously that all information required for an [X]AP application had been provided in April 2019, that the applicant had no obligation to provide the Trust

documents to the father because he already had a copy, that some of the requested information did not exist (e.g. that no financial statements had been prepared for the Trust) and that some of the requested information was irrelevant to an [X]AP application.


[34] [Company 3] issued declaratory judgment proceedings in November 2021 to establish whether the company or [Company 3] was trustee of the Trust. Before doing so, [Company 3] General Manager and an employed lawyer in the firm’s litigation team discussed the draft statement of claim with the father by Zoom call. The brother was present on the call.

[35] The company filed a statement of defence and counterclaim in late January 2022. The company through its lawyers then objected to the firm acting for [Company 3] in the proceedings, on the grounds that one or more of the respondents would be required to give evidence on the issue of whether the father “gave independent and informed instructions” to change the trustee in July 2021 and to issue the proceedings in November 2021.

[36] The firm did not withdraw and the company applied to debar it from acting. The parties jointly advised the Court that the debarment application would need to be determined before other case management steps could be taken. The debarment application was set down for hearing on a date over five months after the issue of the firm’s independence was first raised.

[37] [Company 3] then appointed new solicitors and counsel and the firm was debarred by consent order.

[38] In October 2022, the brother died. In November 2022, the father died. The applicant, as the sole surviving “Protector”, promptly executed a further deed re- appointing the company as trustee.

[39] [Company 3] sought an affidavit-only hearing restricted to the narrow issue of the validity of the applicant’s February 2020 deeds, arguing that if they were held to be valid, all other issues fell away. The company sought summary judgment in reliance on the November 2022 deed of re-appointment and, failing that, a full hearing of all issues. It argued that the central issue on the claim was the father’s alleged incapacity. The Court ordered a full hearing of all issues.

[40] The proceedings were eventually settled by agreement, including as to distribution of the Trust’s funds and the costs of the proceedings.

What was the complaint?


[41] Against that background, the applicant complained that the firm and its various personnel:

(e) acted in litigation in circumstances where the firm was not independent because some of its personnel might be required to give evidence of a contentious nature.

[42] The applicant sought for charges of professional misconduct to be laid against the respondents before the Disciplinary Tribunal.

[43] The firm responded on behalf of all respondents. Its essential points were that:

(a) the brother was the initial point of contact, as the father did not use email;

(g) the draft statement of claim in the proceedings was reviewed and discussed on the Zoom call, during which the father expressed himself to be “just devastated” by the applicant’s actions;

(h) the firm did not oppose the application to debar it from acting “...[t]o avoid further cost and delay”.

[44] The applicant filed an addendum to his original complaint in which he cited two sentences in an email he had received from one of the brother’s children that he interpreted as evidence that the instructions to [Company 3] regarding the Court proceedings were from the brother.

[45] The complaint was referred to the Committee for consideration.

What did the Standards Committee decide?


[46] The Committee resolved to inquire into the complaint. It obtained and reviewed the firm’s file and then conducted a hearing on the papers. In its succinct decision, the Committee found, in summary and in my words unless quoted, that:

[47] It determined under s 138(2) of the Lawyers and Conveyancers Act 2006 (the Act) to take no further action on the complaint. Under that section, such a determination is made on the grounds that further action is either unnecessary or inappropriate or both.

What are the applicant’s grounds for review?


[48] The reasons stated by the applicant for his consequent application for review of the Committee’s decision were, in summary, that:

[49] The applicant sought reversal of the Committee’s decision and a finding of unsatisfactory conduct against all respondents. The firm filed a brief response supporting the decision of the Committee.

What process have I followed on review?


[50] An LCRO review may be conducted on all information available if the Review Officer considers that the review can be adequately determined in the absence of the parties.2 I formed the provisional view that the review could properly be dealt with in that manner and sought the parties’ comments.3 The applicant objected. His counsel filed submissions in support of that objection. I sought and received clarification of those submissions.

[51] After due consideration of counsel’s further submissions on the issue, I decided that I did not need to hear from the respondents on it and that the review could properly be dealt with on the papers.

What is the nature and scope of the review?


[52] My principal statutory obligations regarding the conduct of the review are:

2 Section 206(2) of the Act.

3 Section 206(2A) of the Act.


(a) to conduct the review;4

(c) to do so in a way that achieves the purposes of the Act,6 which are to maintain confidence in the provision of legal services, to protect consumers of legal services and to recognise the status of the legal profession;7

(d) to do so in a framework within which complaints may be processed and resolved expeditiously;8

[53] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:10

... 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.


[54] The High Court has also described a review by the LCRO in the following way:11

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

4 Section 199(1) of the Act.

5 Section 192A(a) of the Act. 6 Section 192A(b) of the Act. 7 Section 3(1) of the Act.

8 Section 120(2)(b) of the Act.

9 Section 200 of the Act.

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

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

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.


[55] 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 the available materials afresh and to provide an independent opinion based on those materials.

What are the issues in the review?


[56] The issues to be considered in this review are as follows:

Discussion

(a) Do the circumstances require an in-person review hearing?


[57] The applicant objected to my provisional view that it would be appropriate to conduct a hearing on the papers. His counsel’s submissions in support of that objection essentially reiterated the applicant’s assertion of procedural error by the Committee for the same reason. Counsel initially submitted that:

(b) “...it is essential that the Review Officer be taken through the evidence about [the brother’s involvement] to have a proper appreciation of what happened”;

(c) “It would be a disservice to the Applicants now, at the level of a miscarriage of justice, if they are again deprived of the opportunity to have this12 and other evidence in support of their complaint properly examined”;

(d) “... the impression from the Decision is that the Standards Committee took an adverse view of [the applicant] as being self-serving and consequently unworthy of a hearing. At paragraphs 5 and 6 of the Decision the factual recitals suggest that he sold the trust property for personal motives. ... This apparently adverse view of [the applicant] was continued with the suggestion that he had achieved his self-serving objective because of the deaths of [the brother] and [the father]... The reasonable interpretation is that the Standards Committee had a prejudicial view of [the applicant], not supported by the evidence, which influenced the abrupt decision to dismiss his complaint. This too should be addressed at a hearing in person”; and

[58] I sought clarification particularly of the submission that the review was “complex and nuanced”. In response, counsel submitted that his submission related partly to “how the diverging accounts of the facts can be reconciled”, partly to assessment of non-

12 Referring to a March 2022 letter from the applicant’s solicitor to the firm requesting that it cease acting for [Company 3]. The letter in question was in the materials before the Committee.

compliance with required standards when dealing with clients whose capacity “is objectively in doubt” and “in taking instructions from another person, purportedly speaking for the infirm client, who stands to gain from the subject-matter of those instructions” and partly to the litigation context.


[59] I do not consider that an in-person hearing is necessary for the evidence in support of the complaint to be “properly examined”, that a review hearing on the papers would result in a “miscarriage of justice” and that traversal of the issues and facts “...in the depth they deserve...” requires an in-person hearing.

[60] The applicant has been articulate, thorough and clear in expressing his original complaint, his analysis of the available evidence, his opinion about defects in the Committee’s decision and his reasons for review. As he stated in his review application, “[i]t is unnecessary for me to explain the complaint again in detail, on the expectation that the Review Officer will read this material”.

[61] Whether there are “diverging accounts of the facts”, as distinct from diverging interpretations of the facts, is a matter I can address on the papers. The applicant’s opinions have been set out clearly and repeatedly.

[62] Counsel’s submission about alleged non-compliance with required standards in assessing capacity reiterate the applicant’s opinions, which have again been explained in the papers. All aspects of the assessment of the firm’s professional duties in taking instructions from its client from March 2021 onwards can be determined on the papers. The applicant had no contact with his father at the relevant time and therefore cannot personally give any probative evidence about his capacity. The father and the brother are not available to give evidence, being deceased.

[63] Counsel also submitted that it was relevant to the request for a hearing in person that the complaint had a significant litigation background and that the respondents’ alleged failings were set out in detail in the applicant’s solicitor’s letter of 11 March 2022 to the firm, which was written in the context of the court proceedings. His client stated, however, that the outcome of the litigation was not relevant.

[64] I asked the parties whether they had any objection to disclosure to me of the terms of settlement of the litigation. Counsel for the applicant advised that he had no objection and that the settlement terms included terms on which the Trust’s funds were to be distributed and the litigation discontinued, and that they did not purport to settle or compromise any professional complaint against the firm or action against it. The respondents did not respond to my request. I decided that the information I already had was sufficient for the purposes of the review.

[65] I sought and received additional information and submissions from the parties about the circumstances of the firm ceasing to act for [Company 3] in the Court proceedings.

[66] On that basis, I agree with counsel that the details of the firm’s alleged failings are before me in the materials. My review is also informed by the interim Court judgment relating largely to matters of procedure that contains useful information about the issues between the parties in the litigation.

[67] Except for one aspect, I agree with the applicant that the outcome of the litigation is not relevant to the complaint or the review. The one aspect is that the settlement of the Court proceedings included agreement on costs.

[68] Counsel has adopted the applicant’s interpretation of various statements made in the Committee’s decision. I can address those issues in this decision without needing to hear in person from the applicant or counsel.

[69] In summary, there is nothing unclear to me about the facts or the resulting issues for consideration. I am not persuaded that there is anything “complex and nuanced” or “multi-faceted” about the issues to be determined, or that I need to hear from the parties in person about any other matter.

(b) Was there anything procedurally defective about the Committee’s hearing process?


[70] The applicant asserted that the Committee dismissed his complaint “without conducting a hearing” and that this constituted “significant procedural error”. Counsel surprisingly adopted these submissions on review. The applicant and counsel have misunderstood the standards committee inquiry process under the Act. Section 153(1) of the Act provides that:

A hearing conducted ... by a Standards Committee is to be a hearing on the papers, unless the Standards Committee otherwise directs.


[71] This is the default position with all standards committee hearings. It is rare for a standards committee to direct otherwise. It did not do so in this instance. This was not a procedural error.

[72] The applicant also asserted that he was not given an opportunity to make submissions and that this was also a serious procedural error. As the applicant correctly stated in his review application, his complaint comprised:

[73] In short, the complaint was articulately and comprehensively expressed and supported by all relevant evidence available to the applicant. He also provided a reply to the firm’s response. He had no reason to expect a further opportunity to make submissions.

[74] Not infrequently, if it considers it requires clarification of any evidence, issue or argument, a standards committee may issue a document normally described as a “Notice of Hearing” specifying (usually, in a non-exhaustive manner) matters on which it requires or would benefit from further comment. It is not obliged to do so (unless the Committee intends to address issues that have not been raised by the parties themselves) and has no need to do so if it considers the evidence, issues and arguments already before it to be sufficient and clear.

[75] The Committee took the precaution of obtaining and perusing the firm’s file and came to the view, recorded in its decision, that there was no need for it to go beyond the documents already produced in the ordinary course of the complaint.

[76] The applicant asserted that the Committee’s serious procedural error in not hearing from him in person was “...compounded by the reliance placed on the lawyer’s file, resulting in a one-sided and inadequately informed view of the facts”. I interpret this as an assertion of both procedural error and analytical error.

[77] To the extent that it is an assertion of procedural error, the applicant’s perception is again misguided. As just noted, the Committee did not consider it necessary to go beyond the material already before it. It did not refer in its decision to any material on the firm’s file and did not refer to any issue arising from the file that the applicant had not already put before it.

[78] Consequently, the applicant’s assertion that the Committee’s findings were made ‘in reliance on” the firm’s file is contradicted by the decision itself. I reject both the applicant’s and counsel’s submissions of procedural error in the Committee’s decision- making process for that reason.

[79] The applicant was entitled to a hearing. He was not entitled to insist on a hearing in person. He was heard.

[80] The Committee did err procedurally in one respect. The complaint of breach of r 13.5 and/or r 13.5.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) was not dependent on the Committee’s findings on the other elements of the complaint.

(c) Did the Committee misconstrue the evidence?

[81] A review is not an appeal. There is no need for the applicant to establish that the Committee misconstrued evidence. I look at all the evidence afresh. I will nevertheless address the applicant’s criticisms of the Committee’s reasoning.

[82] The applicant submitted that the Committee’s “...decision was based on assumptions about key facts which were unsupported by evidence and were wrong”. In that context, his criticism of the Committee’s comment that “...there was no need to go beyond the documents already produced in the ordinary course of the complaint” was also one of analytical error. The applicant concluded that:

This means that my complaint was dismissed in reliance on the lawyers’ file. That was a one-sided exercise and was procedurally and substantively unfair. The lawyers’ errors could not be expected to have been disclosed in their own file.


[83] The illogicality of this submission is self-evident. The Committee was making clear that it was not making any finding based on anything on the firm’s file. On the contrary, it reached its decision on the materials “already produced in the ordinary course of the complaint”. These were the materials available to both parties.

[84] It was for the applicant to adduce evidence supporting his allegations of errors by the firm. He acknowledged himself that the firm’s file was unlikely to contain evidence substantiating his complaint.

[85] I find there was nothing either “one-sided” or “procedurally and substantively unfair” about the Committee’s decision-making process, except for its failure to address the complaint of breach of r 13.5 and/or r 13.5.1 of the Rules independently of the other elements of the complaint.

[86] The applicant also criticised the following statements made in the Committee’s decision:
  1. Without informing [the father] or [the brother], [the applicant], as trustee exercised his power under the trust deed and removed [the father’s] power

as the protector and [the applicant] also exercised his power to give the trustee the power of appointment of trustees.


  1. In December 2020 [the company] sold the ... property.
[87] The applicant’s interpretation of those two statements was as follows:

This suggests that the Standards Committee formed the view that I sold the Trust’s ... property improperly and for self-serving reasons. That was incorrect; [the father] had left the property to live with [the brother] in [Country area] and it was in unoccupied and in default in local body rates. The sale was the only responsible option open to [the company] in the circumstances.


[88] I appreciate that the applicant may be sensitive to perceptions of impropriety in his conduct as trustee, given that [Company 3] was appointed and the proceedings commenced because of his refusal to divulge Trust information to the Trust’s Principal Beneficiary and Protector. The Committee was not addressing the propriety of his conduct as trustee, however. The Committee’s comments quoted above were straightforward and strictly factual. Its phraseology does not imply self-dealing.

[89] In particular, the Committee made no comment about whether the applicant did in fact have the legal power to take the steps he took or whether, if he did, the exercise of such power constituted a breach of fiduciary duty. Any issues of compliance of his actions and documents with “Proper Law” would be legal issues for a Court, as they were in due course, and not something about which there was any need for the Committee to comment.

[90] On the contrary, the error is that of the applicant in confusing the legal issues in the Court proceedings with the issues the Committee was addressing in its inquiry, which related only to the respondents’ conduct.

[91] The applicant also submitted that the Committee’s statement in its decision of the essential background facts was “...prejudicial because it gives the impression that I acted wrongly, which then influenced the decision to dismiss the complaint”. He referred in particular to the following statement in the decision:

[The brother] died on 21 October 2022 and [the father] died on 5 November 2022 effectively leaving [the applicant] with the outcome which would have resulted if none of the above had occurred.


[92] The applicant submitted that:

This suggests that the steps I ... took were a waste of time, with the corresponding inference that my complaint was inconsequential.


[93] The applicant’s submission again lacks a factual or logical basis. The Committee’s observation is straightforward and again unobjectionable in principle,

although I do not agree with it in fact. By the time of the deaths, [Company 3] had been appointed or purportedly appointed and had issued court proceedings, so the outcome was not one “...which would have resulted if none of the above had occurred”.


[94] The observation nevertheless carries no implication that any steps the applicant took were a waste of time. The outcome was the applicant’s continuing control of the Trust and of Trust information and his consequent obstruction of his father’s attempt to obtain an income stream until at least late 2021 and possibly until his death.13 In that sense, the outcome was indeed one “...which would have resulted if none of the above had occurred”.

[95] Similarly, the comment does not imply inconsequentiality of the applicant’s complaint. An allegation against lawyers of using a legal process for an improper purpose could never be considered inconsequential from the lawyers’ perspective. Nor could it be considered inconsequential from the applicant’s perspective given the effort he has expended in pursuing it and his engagement of counsel latterly to assist him.

(d) Who did the firm act for?

[96] The firm was not acting for the applicant. It owed no professional duties to him associated with a lawyer-client relationship.

[97] The firm’s first and principal client was the father. Its evidence was that the brother was the initial point of contact. There is nothing inherently wrong with that. The father was living with the brother and the brother was trying to help him apply for the [X]AP. The father having no income and no access to the Trust’s funds, I infer the brother was meeting the full costs of his care. According to the applicant, the father was not on email and did not have his own phone.

[98] The firm’s evidence is also that it took care to take its instructions from the father. There is no objective reason to doubt that evidence. Nor is there any evidence contradicting it. The applicant’s mistrustful opinions do not constitute evidence. I reject the applicant’s invitation to me to find that the firm’s evidence about taking instructions from the father was false. There is no evidential basis for doing so and any such evidence would need to be cogent.

[99] The firm’s evidence was also that it did not act for the brother. There is similarly no objective reason to doubt that evidence and no evidence contradicting it. The emails from the family member cited by the applicant are not reasonably capable of carrying

13 The materials are silent as to whether the father ultimately obtained the [X]AP.

that implication. The aspect of the brother’s interest is discussed further in relation to the issue of compromising influences and loyalties below.


[100] The firm then acted initially for [Company 3]. There was nothing inherently wrong with that either. [Company 3] had been appointed or purportedly appointed, on the firm’s advice and the father’s instructions, to further the father’s interests as both the Principal Beneficiary and the Protector of the Trust. Their interests can only have been aligned.

[101] [Company 3] then issued proceedings, the company filed a counterclaim, the issue of the potential need for the firm’s personnel to give evidence about the father’s alleged incapacity was raised by the company’s solicitor and the firm ultimately withdrew. Whether it did so in compliance with the applicable Rules is a separate issue I will discuss shortly.

(e) Did the firm breach any professional duties owed to the applicant?

[102] The firm’s principal professional duties to the applicant were to treat him, and to conduct its dealings with him, with integrity, respect and courtesy (combining rr 10.1 and 12 of the Rules, both of which are applicable).

[103] The firm’s correspondence was largely unremarkable in tone and content with the arguable exception of its first letter to the applicant, which was dated 16 May 2021 and was sent by post. The last paragraph stated:

The information requested by [the father] and the information concerning the sale of the home must be provided to me as solicitor acting for [the father] by Noon Wednesday 26 May 2021. If you fail to do so we will initiate Court proceedings.


[104] In his response (a month later), the applicant wrote:

We also note that your threat to initiate court proceedings exactly 1 day after we received the letter by post and only 6 days after writing is both baseless and intimidating.


[105] I would describe the firm’s demand for a response within the specified timeframe as peremptory and am not surprised the applicant called out its empty posturing about issuing proceedings absent such response but for the applicant to describe it as “intimidating” is an exaggeration. In terms of the Rules, the phraseology of the letter is factual and courteous and there is nothing disrespectful of the applicant in it.

[106] I find there was no breach of those Rules in either the firm’s correspondence with the applicant available to me or in its pursuit of the proceedings for [Company 3].

[107] Lawyers also have a wide range of general professional duties. Anyone can make a complaint about their alleged breach, including the other party to a dispute. Section 138 of the Act empowers a standards committee or review officer to constrain the inappropriate exercise of that right where it considers it appropriate and desirable to do so. I discuss below the general duties that the applicant alleges were breached or that might otherwise be applicable.

(f) Did the firm act for the father free from compromising influences and loyalties?

[108] Rule 5 of the Rules provides that:

A lawyer must be independent and free from compromising influences or loyalties when providing services to his or her clients.


[109] The applicant has not expressly alleged breach of this rule but his allegations about the firm acting in the brother’s interests (or on his instructions) even if the brother was not its client fall squarely within its scope.

[110] The evidence before me is that the only thing the brother ever sought to do was to help his father apply for the [X]AP. He made clear in his correspondence with the applicant in 2019 and 2020 that the outcome of that application would be whatever it turned out to be and that the application could not progress without the information [Government agency] had required about the father’s interest in the Trust.

[111] The brother’s correspondence with the applicant in 2019 makes clear that he had no wish to wrest control of the Trust’s asset from the applicant and nothing in the subsequent course of events implies that he did. The brother was not even aware of the existence of the Trust until the father’s need to apply for the [X]AP prompted its disclosure.

[112] Nor is there any evidence that the brother sought any benefit from the Trust or, for that matter, that the father sought any such benefit. The father would plainly have had every right to seek financial benefit as the Principal Beneficiary of the Trust in the context of the applicant’s obstruction of his application for the [X]AP.

[113] So far as the firm is concerned, I am satisfied that there is no evidence of any potentially compromising influence by, or loyalty to, the brother.

(g) Is there any evidence of the firm being on notice of any lack of capacity?

[114] It is not my function to determine the father’s mental capacity at the relevant time, which was between March 2021 and at least July 2021 and probably November

2021, given that the evidence is that [Company 3] was confirming its instructions with the father as the Principal Beneficiary and Protector of the Trust before filing the proceedings. Mental capacity is a medical and legal matter central to the issues pursued by the company in its counterclaim.


[115] The company’s counsel is recorded in the relevant Court judgment as arguing that the father’s alleged lack of capacity could be established only by examination or cross-examination of witnesses at a court hearing. The applicant takes the opposite position in this review. He also seems to take the position that his own unsubstantiated opinion constitutes the default position that needs to be disproved.

[116] This position seems to flow from the applicant’s understanding of two court decisions cited by his solicitor in a letter to the firm dated 1 March 2022 that the solicitor considered relevant to the issue he was corresponding about, which was the firm’s alleged lack of independence in the applicant’s counterclaim in the Court proceedings commenced by [Company 3].

[117] One of those court decisions related to the legal tests for assessment of testamentary capacity14 and the other to the shifting burden of proof when an allegation of lack of capacity is made in that context.15 The decisions might have been relevant to the Court’s determination of the applicant’s counterclaim in those proceedings.

[118] My task in this review is not to express a view on legal issues arising in the applicant’s counterclaim in the Court proceedings. It is to determine only whether the firm was on notice of evidence of lack of capacity, such that its pursuit of what it understood to be the father’s instructions regarding the trusteeship issue could constitute the use of a legal process for an improper purpose if the applicant’s separate argument about alleged improper purpose were also to be established.

[119] There is documentary evidence of the brother’s opinion of the father’s declining health and frailty in October 2019. It seems he had lived alone and without care until he moved to live with the brother. This is not probative evidence of his lack of capacity in May-July 2021.

[120] There is documentary evidence of the applicant’s opinion of the father’s lack of capacity in 2021. This opinion is based solely on the brother’s correspondence with him in October 2019 and the alleged lack of contact between the father and his New Zealand

14 Woodward v Smith [2009] NZCA 215.

15 Loosley v Powell [2018] NZCA 3; [2018] 2 NZLR 618.

connections after the visit at that time. It is not probative evidence of the father’s lack of capacity in 2021 either.


[121] The applicant had no contact with the father once he moved to [Country]. This is no doubt the reason the extensive materials contain no evidence from him supporting his allegation of his father’s incapacity.

[122] The firm was put on notice of the applicant’s alleged concern about capacity, as well as about the brother’s alleged improper influence, in June 2021. The applicant provided no evidence or reasoning in support of his assertion. He did not, for example, provide to the firm his correspondence with the brother in October 2019 that he has subsequently relied on in support of his complaint.

[123] The firm took immediate and appropriate action by communicating directly with the father independently of the brother and arranging a capacity assessment by the GP.

[124] I acknowledge the applicant’s criticism of the adequacy of the GP’s capacity assessment. The resulting report might well have been inadequate in the context of an application to the Court under the applicable legislation in either New Zealand or [Country] relating to the father’s welfare. That was not the context, however.

[125] The brother was not seeking to take legal control of the father’s personal care and welfare. The applicant, not the brother, held an enduring power of attorney for personal care and welfare from the father. There is no suggestion of the applicant seeking to exercise his powers under that document on the grounds of the father’s alleged incapacity, despite asserting in correspondence to the firm that he needed to “ensure the appropriate safeguards are in place for the ongoing safety and welfare of [the father]”.

[126] This has various potential, alternative implications. One is that the applicant did not consider his father lacked capacity. A second is that the applicant did not wish to assume legal responsibility for his father’s welfare where the brother had assumed practical responsibility for his care. A third is that the applicant wished to avoid assuming the role of Protector of the Trust because he could only do so jointly with the brother. It is not appropriate for me to draw any inference.

[127] The applicant submitted on review that the Committee made “...an error of law concerning the standards required by lawyers in assessing their purported client’s mental capacity...”. The submission again confuses a professional conduct issue with the legal issues in the company’s counterclaim in the Court proceedings.

[128] The father was not making a will or doing anything else requiring understanding of legal complexities. He was simply deciding who should control the Trust. His decision, in essence and on the firm’s advice, was “neither son”. The firm was seeking only to confirm that the father’s GP was independently satisfied that the actions it was taking to give effect to the instructions the father had given it the previous month on the firm’s advice about the trusteeship, in the context of the father’s frustrated attempt to obtain the [X]AP, accorded with the father’s wishes. It received that confirmation.

[129] I find that the applicant’s complaint on this ground is not made out.

(h) Did the firm engage in misleading conduct?

[130] The applicant alleged that the firm engaged in misleading conduct by purporting to act for the father when he believed it was acting for the brother. Misleading conduct in trade is a legal matter governed by the Fair Trading Act 1986. It is not directly a professional disciplinary matter, although a finding of misleading or deceptive conduct by a lawyer under that Act could be the basis of a consequential professional conduct complaint.

[131] The applicable provision of the Rules16 proscribes only misleading or deceptive conduct regarding an aspect of a lawyer’s practice. It has an administrative focus. There is no suggestion of potential breach of that provision in the context of this review.

[132] There is also a range of professional duties arising from a lawyer’s overriding duty as an officer of the Court that preclude any form of misleading conduct in that context. Again, no such issue arises here.

[133] In any event, there is no evidence before me that the firm was acting for, or in the interests of, anyone but the father and then [Company 3], for the reasons already stated. In particular, the only available evidence is that the firm was not acting for the brother.

[134] If the applicant wishes to establish that the firm was so acting and thereby engaging in misleading or deceptive conduct in trade, and that he thereby suffered loss, he has a remedy available under the Fair Trading Act 1986 that it is reasonable for him to exercise by court action.

16 Rule 11.1 in May-June 2021 and Rule 10.9 from 1 July 2021 onwards.

(i) Did the firm use, or assist in using, any legal process for an improper purpose?


[135] The applicant’s allegation against the firm of using a legal process for an improper purpose is premised firstly on the father’s alleged incapacity and secondly on the firm acting for or in interests of the brother.

[136] There is no evidence of the firm having good reason to believe the father was “cognitively impaired”, as submitted by counsel, in relation to the trusteeship issue in the context of his application for the [X]AP. Nor is there any evidence supporting counsel’s submission that the deed of appointment of [Company 3] was “...purportedly executed by [the father] when he objectively lacked capacity”. This does no more than record counsel’s instructions about the applicant’s subjective and unsubstantiated opinions and the applicant’s disagreement with the GP’s limited capacity assessment. Consequently, the applicant’s allegation fails on the first premise.

[137] The distortionary subjectivity of the applicant’s opinions is perhaps best illustrated by his criticism of the father’s personal bank accounts being depleted at a time when the applicant was actively obstructing him from applying for a pension and refusing to disclose any information about the Trust’s funds (until September 2021), let alone making any such funds available for his benefit as Principal Beneficiary of the Trust.

[138] Nor is there any evidence of an improper purpose. I am satisfied there is no evidential basis for counsel’s submission that “...the evidence is that [the firm] acted on the instructions of [the brother] who exploited [the father] to advance his own purposes, to take control of [the Trust]”. No such evidence is identified in submissions.

[139] To the extent that regard should be had in a professional conduct context to the two authorities cited by the applicant’s lawyer in correspondence,17 one might consider the paraphrased extract from the judgment in Banks v Goodfellow18 set out in paragraph

[19] of the former decision (Woodward) to be particularly pertinent as to the limited scope of the capacity issue, the GP’s capacity assessment and the respondents’ consequent duty.


[140] The father wished to apply for the [X]AP. He was prevented from doing so by the applicant’s persistent refusal for two years to provide him with information he needed and to which he was entitled (regardless of whether he had previously received any of it). The purpose of replacing a trustee with a trustee who would provide him with the information required by [Government agency] was not an improper purpose.

17 See paragraph [117].

18 Banks v Goodfellow (1870) LR 5 QB 549 at [565]–[568].


[141] The entity to be appointed as the new trustee, [Company 3], on the firm’s recommendation and contrary to the father’s initial preference, was an entity independent of the brother’s influence or alleged influence. Its appointment was inherently inconsistent with any such alleged improper purpose.

[142] The potential difficulties associated with the applicant’s two February 2020 deeds would be self-evident to any lawyer. The firm’s pursuit of Court proceedings to establish whether the company or [Company 3] was the validly appointed trustee cannot have been an improper purpose.

(j) Did any respondent act in the Court proceedings in breach of any applicable professional duty?

[143] The applicant cited rr 13.5 and 13.5.1 of the Rules. I considered r 13.5.2 to be also potentially relevant and requested submissions on it. Counsel for the applicant submitted that r 13.5.3 was also relevant. These Rules provide that:
[144] The Committee’s reason for not dealing with this part of the complaint was not valid. Each separate element of a complaint needs to be determined on its merits. Lawyers can lack independence in proceedings pursued for a proper purpose, so proper purpose does not necessarily translate to propriety of involvement.

[145] Rule 13.5.1 operates prospectively and consequently requires a degree of foresight or advertence to a potential issue. Rule 13.5.2 operates retrospectively once an issue has arisen. Rule 13.5.3 requires that the conduct or advice be “in issue” and could therefore operate either prospectively (from a defendant’s lawyer’s perspective, because the issue is raised in the plaintiff’s pleadings) or retrospectively.

[146] The potential difficulties associated with the prospectivity of r 13.5.1 have been discussed by the High Court in Strack v Grey.19 Assessment requires a “careful analysis” of the issues and the evidence, and a balancing of competing considerations. An assessment under r 13.5.2, however, involves “a significantly greater degree of certainty”.

[147] It may be that no issue arose initially when [Company 3] proceedings were commenced. The central issue in its claim was the validity of the applicant’s two February 2020 deeds. This could not require any evidence from a member of the firm. The firm was not to know how the company would respond. I infer that no issue of the firm’s independence was raised directly by the second respondent’s statement of defence and counterclaim filed in late January (which I have not seen).

[148] The issue was formally raised by the applicant’s lawyer in a Case Management Conference memorandum dated 1 March 2022. Counsel for the applicant helpfully provided me with a timeline of the course of relevant events from that date. The fourth respondent on behalf of the respondents did not disagree with it and added three items of relevant information. Relevantly:

1 March 2022 The issue of the firm’s lack of independence was raised in a case management memorandum.

11 March 2022 The applicant’s lawyer wrote to the firm explaining in considerable detail why it was inappropriate for the firm to be acting.

23 March 2022 A Court minute recorded an indication from counsel for [Company 3] (the fourth respondent) that, depending on discussions between counsel, the plaintiff (the company) could make an application to debar the firm from acting.

April 2022 Discussions between counsel were “inconclusive”. 5 May 2022 An application to debar the firm was filed.

6 May 2022 In a joint memorandum, counsel advised the Court that the application to debar needed to be resolved before any further procedural steps were taken.

11 May 2022 The Court issued a notice issued of hearing of the debarment application in August 2022.

19 Strack v Grey [2016] NZHC 1981 at [10]–[12].

19 May 2022 The fourth respondent advised the company’s lawyer relevantly that [Company 3] had decided not to oppose the application to debar the firm, that arrangements were being made to engage alternative legal representation and that the fourth respondent would advise the Court.

25 May 2022 A joint memorandum was filed recording the firm’s agreement to withdraw. [Company 3] had not at that point filed a notice of opposition. Costs on the application to debar were reserved by agreement.

7 June 2022 A consent order for the firm’s debarment was issued.


[149] There was then some delay in the filing of a notice of change of representation but the firm was unaware of the delay and the responsibility for it rested with the new lawyers.

[150] Perhaps regrettably in retrospect, the applicant’s lawyer’s memorandum dated 1 March 2022, although stating that “one or more members of the firm are likely to be required to give evidence”, referred only to r 13.5.1. His follow-up letter of 11 March 2022 also referred only to r 13.5.1. In that letter, the applicant’s lawyer also stated his expectation of cross-examining “...one or more members of the firm (probably the two of you, having been directly involved in this matter)” and to the likelihood of subpoenas.

[151] The “two of you” were the fourth respondent and an employed solicitor who is not a respondent in this review. Those two individuals were litigation lawyers who had not, on the fourth respondent’s evidence, been “directly involved” in the firm’s conduct of the file until [Company 3] decision to issue proceedings.

[152] The employed lawyer did, however, participate with [Company 3] General Manager in the Zoom call, after that decision was made but before the proceedings were issued, to discuss the draft statement of claim with the father and the brother.

[153] The application to debar filed in May 2022 also referred only to r 13.5.1 although on this occasion it referred to “the lawyers representing the plaintiff”. The supporting affidavit of the applicant made clear that the reference was to all the firm’s lawyers who had been involved in the conduct of the file. The applicant expressed the view that the evidence of the second, third, fifth and sixth respondents, as well as the fourth respondent and the employed lawyer, would be “relevant and necessary.”

[154] The fourth respondent’s apparent misunderstanding of the firm’s duties under rr 13.5 to 13.5.2 at that point is evident from her submissions on review. She stated:

I have considered the application of these specific rules to myself, as the litigator named in this complaint. None of the other respondents were involved in the court proceedings and accordingly these particular rules are not relevant to them.

[The 11 March 2022 letter] names myself and my [employed lawyer] colleague as being required as witnesses but neither [the employed lawyer] (who assisted in the drafting of the statement of claim for the high Court proceedings) nor myself were involved in assessments of, or decisions made about, [the father’s] capacity, his understanding of the deed or ‘trust-related matters’. The file was passed to [the employed lawyer] and myself after the appointment of [Company 3] as trustee, once it became clear that proceedings would be required....

...

I note that [the applicant’s solicitor] did not provide any substantive reasons for considering myself and [the employed lawyer] disqualified, and that no complaint has been made about [the employed lawyer’s] conduct in this matter.

Rule 13.5.2 was potentially engaged if another member of [the firm] was going to be required to give evidence of [a] contentious nature, but matters did not get to that point. The High Court proceedings had already been filed prior to receipt of [the 11 March 2022] letter.... It was appropriate that the contents of that letter were carefully considered by [Company 3] and [the firm] given the nature of the issues raised. After taking time to do that, a pragmatic decision was made not to oppose the application to debar....


[155] The fourth respondent proceeded to refer only to the time and cost of arguing the debarment application. She stated that this was not an acceptance of the criticisms made in the 11 March 2022 letter and, to the contrary, submitted that there was “no significant delay” and that the firm’s actions were entirely appropriate. She also submitted that the circumstances could not amount to breach of r 13.5.2.

[156] I accept the arguable legitimacy of the fourth respondent’s submission so far as the position set out in the 11 March 2022 letter is concerned. On her account of the facts, she personally could not have been required to give evidence of a contentious nature and, on that basis, the applicant’s lawyer had cited the wrong Rule (r 13.5.1). An application to debar made solely on that narrow basis might well have been defendable, albeit probably only if the Court did not allow the company’s lawyers to amend the specific Rule reference once they realised their mistake.

[157] I do not accept that the fourth respondent could have been blind to the wider issue of the likelihood that other members of the firm might be required to give evidence of a contentious nature. The issues of the father’s capacity and the firm’s authority had been raised repeatedly in the correspondence from the applicant and his lawyer during 2021. The “contentious evidence” issue was then raised formally in the 1 March 2022

memorandum, which was not specific as to which of the “one or more members” of the firm might be subpoenaed.


[158] I accept that the issue was probably not (on the fourth respondent’s account) one of breach of r 13.5.1 but the fourth respondent could not reasonably have assumed that any resulting debate would be that narrow in scope.

[159] The debarment application was then filed. The firm’s explanation that its ultimate decision not to oppose the application was one of “pragmatism” is no doubt correct in substance, albeit technically misconceived. A decision to oppose the application (or not) could only be made by [Company 3], not the firm, and would only need be made if the firm was not obliged to withdraw anyway of its own accord.

[160] The debarment application should not have been necessary, however. The fourth respondent’s submission blithely ignores the text of r 13.5.2, which provides that:

13.5.2 If, after a lawyer has commenced acting in a proceeding, it becomes apparent that the lawyer or a member of the lawyer’s practice is to give evidence of a contentious nature, the lawyer must immediately inform the court and, unless the court directs otherwise, cease acting. (my emphasis)


[161] Rule 13.5.2 is one of a range of provisions of the Rules dealing with various aspects of conflict of duty for a lawyer that are informed by the previous common law and regulatory position but in some respects are more stringent.

[162] The relevant legal issue before the Court on the counterclaim was the mental capacity of the father, in executing the July 2021 deed as Protector, to understand that he was purportedly removing the company and appointing [Company 3] as trustee. Once the father’s alleged incapacity was formally raised in the proceedings, it must have been apparent to the fourth respondent that some of the firm’s personnel might be required to give evidence of a contentious nature as to their perception of the father’s capacity during their engagements with him. The obligation to inform the Court and cease acting unless the Court directed otherwise then arose “immediately”.

[163] I have reviewed commentary on the court decisions on the application of the principles to what is now r 13.5.2 and on the Rule itself. The early decisions soon after the introduction of r 13.5.2 in 2008 could fairly be described as disparate. The High Court decisions is Pioneer Insurance Company Ltd v Anderson20 and Greenmount Manufacturing Ltd v Southbourne Investments Ltd 21 appear to have approached

20 Pioneer Insurance Company Ltd v Anderson [2008] BCL 761.

21 Greenmount Manufacturing Ltd v Southbourne Investments Ltd [2009] BCL 67.

interpretation of the rule from two different poles. In the latter instance, the initial decision of Associate-Judge Doogue was reversed within 10 days by Harrison J on review.


[164] On the issue now governed by r 13.5.2 of the Rules, the two leading Court decisions appear to be a decision of the High Court in Beggs v Attorney-General 22 (before introduction of the Rule) and a decision of the Court of Appeal in Li v Liu23 (after introduction of the Rule). The more common focus of the Rule appears to be on the scenario of a lawyer being a necessary witness for the lawyer’s own client. In a scenario where a litigant wishes to call the other party’s lawyer to give evidence, it seems necessary to establish that the lawyer is a necessary and material witness.

[165] In Li v Liu, the Court of Appeal commented that:

...the court should not lightly interfere in a party's fundamental right to counsel of their choice, particularly where considerations of delay in the application, inconvenience, or sunk cost favour the affected party. Further, the court should be vigilant in preventing objections whose purpose is only to disrupt or inconvenience the other side.


[166] It is not appropriate for me to speculate about what the Court would have decided if the debarment application had gone to hearing. On the face of it, however, the applicant seems to have had a cogent argument to advance that the evidence of the members of the firm who dealt with the father and/or the brother, particularly in June-July 2021, would have been material to the company’s allegations of lack of capacity and improper influence from the brother given that both the father and the brother were by then deceased and that the applicant himself had no contact with the father.

[167] It seems that no such evidence could have been given by the fourth respondent because she personally had had no dealings with the father or the brother. Rule 13.5.2, however, expressly extends to any other member of the lawyer’s practice. It is the firm as a whole that is infected by the potential conflict between duty to the client and duty to the Court.

[168] There are then two express aspects of the Rule that are pertinent and more stringent than the position before the advent of the Rule. The first is the lawyer’s obligation to inform the Court and the second is immediacy. “Immediately” means immediately, not with “no significant delay”. If the fourth respondent wished to persuade the Court to direct otherwise, then it was for her to advise [Company 3] of the situation (including meeting her duties to [Company 3] under r 13.3 of the Rules), to inform the

22 Beggs v Attorney-General [2005] NZHC 1209; [2006] 2 NZLR 129 [30].

23 Li v Liu [2018] NZCA 528.

Court immediately and to apply to the Court for directions, not to stall and require the other party to file an application to debar the firm.


[169] I acknowledge that there will always be a degree of latitude under r 13.5.2 for a lawyer to consider the application of the Rule to the circumstances but I do not consider that a delay of almost three months involving expressed resistance to the prospect of withdrawal and without advising the Court of the issue can reasonably be regarded as immediately informing the Court and ceasing to act.

[170] Accordingly, I consider that the fourth respondent, as solicitor on the record, failed to immediately inform the court and cease acting for the purposes of r 13.5.2 and that this constitutes a breach of the same Rule by the firm.

[171] There is plainly an overlap between the more specific r 13.5.2 and the more generic r 13.5. Breach of the former implies breach of the latter once the firm had failed to cease acting.

[172] Counsel for the applicant submitted that r 13.5.3 also applied. He submitted that the conduct and advice of members of the firm relating to both the July 2021 deed and the commencement of litigation would be contentious issues in the proceedings essentially because of the alleged inadequacy of the GP’s capacity assessment and report.

[173] I put the Zoom call about the draft statement of claim in a different category from the deed changing the trustee. The decision to issue proceedings was technically [Company 3], not the father’s, to make but the decision could be of potential benefit or detriment (particularly in terms of the cost of proceedings) only to the father as the Principal Beneficiary (and Protector) of the Trust and the firm’s primary client. The materials are silent as to who was either meeting or indemnifying [Company 3] for the cost of the proceedings.

[174] I have reviewed commentary on the numerous Court decisions about r 13.5.3. Some core principles emerge. First, it is only where the lawyer’s conduct or advice is a material or relevant issue to be resolved in the proceedings that the lawyer will be disqualified from acting.24

[175] Secondly, in determining generally whether a lawyer lacks independence in litigation (i.e. in relation to the over-arching principle in r 13.5, not just the more specific r 13.5.3), r 13.5 “eschews absolutism in favour of materiality”.25 Expressed another way,

24 Cutting v Liu [2014] NZHC 1063.

25 Keene v Legal Complaints Review Officer [2018] NZHC 1869.

the Court adopts a pragmatic approach and will debar solicitors from acting only where it becomes evident that they are unable to bring the necessary degree of objectivity and independence to the matter that the court is entitled to expect.26


[176] Thirdly, the courts do not tolerate attempts to use the rule as a tactical weapon to disrupt the opposing party in litigation.27

[177] There is nothing in the circumstances that would suggest to me that the applicant’s objection to the firm continuing to act in the matter of the company’s counterclaim in the proceedings was a tactical measure. The applicant’s allegation regarding the father’s lack of capacity appears to have been central to the company’s counterclaim.

[178] On the information available to me, however, the firm’s conduct and advice to the father does not appear to have been material to the company’s counterclaim. Rather, it was a case of the members of the firm who had dealt with the father at the relevant time being the only surviving people who could give evidence about his state of mind when giving his instructions to proceed in accordance with the firm’s recommendation to appoint [Company 3] as trustee.

[179] In those circumstances, I am satisfied that r 13.5.3 is not engaged. I am reinforced in that view by the fact that the matter was not raised as a potential issue by the applicant’s lawyers at the time and seems to have been something of a make-weight submission by counsel in his submissions to the review hearing.

(k) Should I reach a decision on grounds other than the grounds considered relevant by the Committee?

[180] Under s 211(1)(b) of the Act, I have the power to exercise any of the powers available to the Committee. These include the power to take no further action on any part of a complaint on any of the grounds set out in s 138 of the Act. Those grounds include the complaint being vexatious or not made in good faith for the purposes of s 138(1)(c).

[181] I would have been open to exploring the potential application of the above provision, other than in relation to the issues just discussed, if such argument had been advanced. No such submission having been made by the firm or considered by the Committee, however, I consider it unnecessary to do so.

26 Anderson v De Marco [2020] NZHC 837.

27 Fava v Aral Property Holdings Ltd [2012] NZCA 585, citing Clear Communications Ltd v Telecom Corporation of New Zealand Ltd (1999) 14 PRNZ 477 at [34].


(l) Does the applicant have a valid claim to compensation?

[182] The company should not have had to prepare and file the debarment application. Once it did so, the firm did not immediately concede the point and the application had to be set down for hearing, thus potentially delaying the proceedings by five months. As discussed above, I infer that this was probably because the application relied on the wrong rule and was therefore potentially defendable from a technical perspective, unless amended.

[183] None of this should have been necessary. The firm’s difficulty should have been obvious to the fourth respondent as soon as the issue was raised in the case management conference memorandum, regardless that r 13.5.2 was not mentioned, the respondent had a duty to inform the Court and “immediately” means immediately. The applicant has undoubtedly been put to unnecessary legal expense for that reason.

[184] The approach consistently taken in this jurisdiction is nevertheless that party costs in court proceedings are a matter for the parties and the Court in those proceedings, and that the complaints process cannot be used to “top up” a costs outcome agreed between the parties or determined by the Court. Accordingly, I decline the request for compensation.

(m) What is the appropriate outcome of the review?

[185] Some of the applicant’s submissions on his complaint and review application carry the flavour of a man concerned to validate his own conduct by invalidating the conduct of his father’s lawyers and, by extension, his father. As a man of religious education, the applicant will be familiar with Proverbs 28:1. Neither the Committee’s decision nor this one comments on any issue of conscience for the applicant. That would be presumptuous. This review relates only to the alleged professional conduct of the firm and its personnel.

[186] I find no reason to disturb the Committee’s findings in relation to the issues it expressly addressed and no need to examine the individual conduct of anyone within the firm on those issues but I come to a different view on the issue the Committee did not expressly address relating to independence in litigation.

Decision and Orders


[187] Pursuant to s 211(1)(a) of the Act, I:

13.5.2 and 13.5 (but not rr 13.5.1 or 13.5.3) in the circumstances and that the breaches constitute unsatisfactory conduct;


(c) confirm the determination to take no further action under s 138(2) of the Act in respect of all other elements of the complaint.

[188] I consider that a reprimand and a fine are appropriate for the breaches of rr 13.5.2 and 13.5. In relation to the fine, I am less concerned about the time it took for the firm to come to the view that it was obliged to withdraw than I am about the fourth respondent’s apparent continuing inability to understand that it should have done so without protest in March 2022 or at least before an application to debar needed to be filed. She maintains on review that “these circumstances cannot amount to a breach of r 13.5.2”. That was a matter for the Court to decide once she had informed it of the issue and sought directions herself.

[189] Rules 13.5.2 and 13.5 fall under the rubric of a lawyer’s duties as an officer of the Court. In the Law Society’s Penalty Guidelines for Lawyers Standards Committees, the general comment is made that breaches in this category of a lawyer’s duties have typically attracted censure and/or fines of at least $2,000, with higher fines being reserved for conduct which has had an adverse impact on Court processes. This starting point is higher than its generally recommended starting point.

[190] I exercise caution in relation to the context of that comment. Almost all the examples given in the commentary are of failures of candour and honesty, misrepresentations and misleading omissions, filing misleading affidavit evidence or criticising the judiciary. They are different and more serious in kind to a failure to recognise and accept a lack of independence in litigation.

[191] In this instance, there was an adverse effect on the Court process not in terms of the substance of the case but in terms of the expeditious conduct of the proceedings. This was ameliorated by the “pragmatic” but belated decision for the firm to cease to act. I infer that the decision was probably [Company 3] rather than the firm’s, despite the fourth respondent’s odd reference in her submissions to the firm’s decision “not to oppose the application.”

[192] I consider that some of the fourth respondent’s submissions reflect her relatively modest experience at the time as the holder of a practising certificate. This was a lapse of judgment and of understanding of the current regulatory position, not a matter of improper motivation. There is also a risk of lack of objectivity when acting for oneself in responding to a professional conduct complaint.

[193] I also wonder whether there was any internal communication within the firm about the issue that had been raised in March 2022. There were four other individual respondents, all experienced lawyers and all of them identified as being potential witnesses under subpoena. I am surprised that none of them seems to have been alert to the obvious difficulty.

[194] The relevant duties are properly considered as collective ones and there is an argument for an unsatisfactory conduct finding against each respondent. After due consideration, however, I reach the view that disciplinary orders against the firm in a representative capacity are a sufficient disciplinary response other than in respect of the respondent with primary carriage of the litigation file.

[195] The fourth respondent has a clear disciplinary record. The firm also has a clear disciplinary record. This is perhaps remarkable for a medium-sized law firm. In any event, it is indicative of an isolated professional lapse.

[196] I identify no aggravating features but consider that the fine must reflect the context of the respondents’ duties as officers of the Court and the lack of understanding of ethical constraints demonstrated by the firm’s initial response to the applicant’s lawyer’s court memorandum, letter and debarment application and its submissions in the complaints process.

[197] The firm and the fourth respondent are reprimanded for their breaches of rr 13.5.2 and 13.528 and I order the firm to pay a fine of $3,000 to the New Zealand Law Society.29

[198] Where an adverse conduct finding is made, a costs order will normally be made. In terms of the LCRO’s Costs Guidelines, I consider this matter to have been reasonably straightforward conceptually and that the firm should not be penalised for the time taken to consider the applicant’s extensive and rather repetitive complaint materials and tangential arguments. The firm has been succinct and precise in its responses.

28 Section 156(1)(b) of the Act.

29 Section 156(1)(i) of the Act.


[199] I order the firm to pay costs on the review of $1,150 to the New Zealand Law Society.30

[200] The fine and costs are to paid within 30 days of the date of this decision and I confirm that those orders may be enforced in the civil jurisdiction of the District Court.31

Publication


[201] The Act requires that every review must be conducted in private.32 It also 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.33

[202] A Review Officer may direct such publication of his or her decision as the Review Officer considers necessary or desirable in the public interest.34 “Public interest” engages issues such as consumer protection, public confidence in legal services and the interests and privacy of individuals.

[203] 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 does not identify the parties or others involved in the matter and otherwise in accordance with the LCRO Publication Guidelines.

DATED this 16TH day of APRIL 2025


Fraser Goldsmith

Legal Complaints Review Officer

In accordance with s 213 of the Act, copies of this decision are to be provided to: Mr VO and EO as the applicants

Law Firm A, OW, PN, EW, WR, VK as the respondents [Area] Standards Committee

New Zealand Law Society

30 Section 210(1) of the Act.

31 Section 215(1) of the Act.

32 Section 206(1) of the Act.

33 Section 213(1) of the Act.

34 Section 206(4) of the Act.

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