VG v FQ [2025] NZLCRO 51 (22 April 2025)

Last Updated: 13 May 2025

LEGAL COMPLAINTS REVIEW OFFICER

ĀPIHA AROTAKE AMUAMU Ā-TURE

	[2025] NZLCRO 051 Ref: LCRO 141/2024
CONCERNING	an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING	a determination of the [Area] Standards Committee [X]
BETWEEN	VG Applicant
AND	FQ Respondent

DECISION

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

Introduction

[1] Ms VG has applied to review a determination of the [Area] Standards Committee

[X] (the Committee) dated 23 September 2024, in which the Committee made a finding of unsatisfactory conduct against her in relation to deficiencies in legal work that she had been instructed by Mr FQ to carry out.

[2] In addition to making a finding of unsatisfactory conduct against Ms VG, the Committee ordered her to pay a fine of $1,000.00 together with costs of $750. As well, she was ordered to reduce the legal fees she had charged from $2,995.18 to $2,000.

Background

[3] During 2020, Mr FQ instructed Ms VG to act for him in connection with relationship property issues arising following his separation from his partner.

[4] Those instructions included lodging a caveat against the title to the property which Mr FQ and his partner had occupied during their relationship (the property).

[5] Mr FQ paid a $10,000 retainer as requested by Ms VG.

[6] In September 2021, Mr FQ discovered that the property was on the market for sale. He spoke to Ms VG by telephone about this and was informed by her that there were difficulties with the caveat.

[7] At a subsequent meeting with Ms VG on or about 28 September 2021, Mr FQ was informed that it had been lodged at 4.30 pm, that day.

[8] The property was sold several days later. Mr FQ asked Ms VG how that could happen, given the caveat that had been lodged on 28 September. She informed him that she had missed the time limit for lodging it.1

[9] Ms VG advised Mr FQ that the missed opportunity with the caveat had not compromised his position, and that a relationship property claim could still be made. She advised him that there were significant delays in the court system, principally due to the effect of the COVID19 lockdowns.

[10] In September 2022, Mr FQ noted media articles indicating that Ms VG was facing disciplinary issues with the New Zealand Law Society. He spoke to her about this, and she advised him that her name was unlikely to be struck off the roll of barristers and solicitors, but that if that occurred another lawyer would represent him.

[11] On 2 October 2022 Ms VG issued an invoice to Mr FQ for legal work she had carried out, in the total amount of $2,995.18. This sum was deducted from the retainer she held in her trust account.

[12] Despite numerous attempts since October 2022, Mr FQ has been unable to contact Ms VG.

1 As discussed later in my decision, it appears that Ms VG had lodged the caveat as instructed, but had failed to take the necessary steps to sustain it once Mr FQ’s partner had made an application for it to lapse.

Complaint

[13] In a complaint emailed to the New Zealand Law Society Lawyers Complaints Service (Complaints Service) received on 3 May 2023, Mr FQ complained about Ms VG as follows (and as I summarise):

• (a) Ms VG retained his file, and he was unable to uplift it.
  
  • (b) Ms VG had agreed to collect evidence from him in relation to the potential relationship property claim, but failed to do so.
    
  • (c) He believed that he lost his opportunity to settle the relationship property dispute with his former partner when Ms VG failed to lodge the caveat against the title to the property, as she had been instructed to do.
    
  • (d) This was unprofessional.
    
• (e) He felt that he had wasted $10,000 and this should be returned to him.
  

[14] Mr FQ noted that he had tried on numerous occasions to contact Ms VG after their discussions in September 2022, but she did not respond to his messages to call him. He said that he was aware that her name had been struck off the roll of barristers and solicitors and that her law practice was noted as “permanently closed.”

No response by Ms VG

[15] The Complaints Service wrote to Ms VG on 25 September 2023, via email, informing her about Mr FQ’s complaint and attaching a copy of it.2

[16] The letter asked Ms VG to provide it with any response to the complaint by Tuesday 17 October 2023.

[17] By 22 May 2024, Ms VG had not responded to the Complaints Service’s letter. The complaint was considered by the Committee on that date, and it resolved to set the matter down for a hearing on the papers.

[18] A Notice of Hearing was sent to the parties on 30 May 2024 (Notice). The Notice invited submissions by 5pm on Friday 28 June 2024. Ms VG’s copy was emailed to her.

2 The email address used through the Committee’s investigation was [redacted]. None of the emails sent by the Complaints Service were returned as undelivered or undeliverable.

[19] By 10 July 2024, Ms VG had not responded to the Committee’s Notice. The Complaints Service emailed her on that date giving her until Monday 15 July 2024 to make any submissions about the complaint and the Notice.

[20] The Committee considered Mr FQ’s complaint at its 24 July 2024 meeting, and determined that Ms VG’s conduct was unsatisfactory. It also made penalty, costs and fee reduction orders.

[21] The parties were notified on 1 August 2024 that the Committee’s decision, the details of which were not disclosed, would be available in a further 12 – 14 weeks from that date.

[22] Ms VG did not respond to the Complaints Service’s 1 August 2024 letter.

Standards Committee determination

[23] The Committee identified the following conduct issues as arising from Mr FQ’s complaint:3

Whether Ms VG, in providing regulated services to Mr FQ, failed to lodge a caveat in relation to the property at [Address], [Town] and/or failed to take steps to sustain the caveat, and therefore failed to act competently and in a timely manner consistent with the terms of the retainer and the duty to take reasonable care, pursuant to rule 3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.

[24] The Committee observed that Ms VG had not responded to the complaint, however it had obtained Mr FQ’s client file by executing a search warrant at her practice premises.

[25] In relation to the file, the Committee noted that it “was brief [but] contained enough information for [it] to form a view about the issues raised by Mr FQ’s complaint.”4 The Committee delivered the file to Mr FQ once it had issued its decision.

[26] In dealing with the conduct issue that it had identified, the Committee held:5

• (a) Ms VG had undertaken some legal work for Mr FQ.
  
  • (b) She had lodged a caveat. However, Mr FQ’s partner had applied to the High Court for the caveat to lapse.
    

3 Standards Committee decision (23 September 2024) at [7].

4 At [9].

5 At [10]–[13].

(c) Ms VG did not advise Mr FQ about this development and that it was open to him to apply to the High Court to sustain the caveat. That would have triggered a number of timetabled events before the Court dealt with the application to sustain the caveat.

(d) However, Ms VG did none of the above, meaning that the caveat automatically lapsed. Mr FQ therefore lost his security over the property.

(e) The Committee described this as “a significant failing” by Ms VG which amounted to a breach by her of r 3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules).

[27] The Committee noted that Ms VG had charged fees to Mr FQ in the total sum of $2,995.18 which it said had been deducted from his initial $10,000 retainer.

[28] Having noted that Ms VG had carried out some legal work on Mr FQ’s behalf, she had nevertheless failed to follow his instructions in relation to the caveat. In those circumstances the Committee held that she should reduce her fees to $2,000.

Application for review

[29] Ms VG lodged her application to review the Committee’s decision on 5 November 2024. Quoting her review application in full, she said:

The determination was made without [her] knowledge of the complaint.

Mr DT, the attorney for the practice, improperly sent the decision to [her] without proper disclosure.

The identity of the individual who communicated with Mr DT is unknown. It is a clear violation of the confidentiality clause, legal privilege, and the New Zealand Bill of Rights Act 1990.

It is evident that Mr DT coordinated the complaint, and the principles of natural justice demand full disclosure.

The standards committee’s decision must be reversed and quashed. That full disclosure be made to [her].

[30] Mr FQ has not responded to the review application.

Review on the papers

[31] This review has been undertaken on the papers pursuant to s 206(2) of the Act.

[32] This provision allows a Legal Complaints Review Officer to conduct a review on the basis of all information available, if the Review Officer considers that it can be adequately determined in the absence of the parties.

[33] In anticipation of that process being followed, on 21 March 2025 the parties were given an opportunity to make submissions as to whether they wished the review application to proceed by way of a hearing in person, or a hearing on the papers. They were informed that any submissions were to be filed by no later than 4pm on 28 March 2025, and that in the absence of any response it would be assumed that there is no objection to the review application being dealt with on the papers.

[34] In an email to the Case Manager dated 27 March 2025, Ms VG indicated a wish to have the matter heard in person. She said that she had been disadvantaged by a lack of access to relevant files, and for that she required full disclosure. She noted that she deserved a “proper opportunity to present her case” in order to ensure that the interests of justice are met.

[35] No response was received from Mr FQ.

[36] I confirm that I have carefully read the complaint, the Committee’s determination and the submissions filed in support of the application for review. There are no additional issues or questions in my mind that necessitate any further submission from either party.

[37] On the basis of the information available, I have concluded that the review may be adequately determined on the papers and in the absence of the parties.

Nature and scope of review

[38] The nature and scope of a review was discussed by the High Court in 2012, which said of the process of review under the Act:6

... 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

6 Deliu v Hong [2012] NZHC 158, [2012] NZAR 209 at [39]–[41] (citations omitted).

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.

[39] In a later decision, the High Court described a review by a Review Officer in the following way:7

[2] ... A review by [a Review Officer] is neither a judicial review nor an appeal. Those seeking a review of a Committee determination are entitled to a review based on the [Review Officer’s] own opinion rather than on deference to the view of the Committee.

...

[19] ... A “review” of a determination by a Committee dominated by law practitioners, by the [Review Officer] who must not be a practising lawyer, is potentially broader and more robust than either an appeal or a judicial review. The statutory powers and duties of the [Review Officer] to conduct a review suggest it would be relatively informal and inquisitorial while complying with the principles of natural justice. The [Review Officer] decides on the extent of the investigations necessary to conduct a review in the context of the circumstances of that review. The [Review Officer] must form his or her own view of the evidence. Naturally [a Review Officer] will be cautious but, consistent with the scheme and purpose of the Act ... those seeking a review of a Committee determination are entitled to a review based on the [Review Officer’s] own opinion rather than on deference to the view of the Committee. That applies equally to review of a [decision] under s 138(1)(c) and (2) [of the Act].

[20] ... While the office of the [Review Officer] does not have the formal powers and functions of an Ombudsman, it can be expected to be similarly concerned with the underlying fairness of the substance and process of the Committee determinations in conducting a review.

[21] A review by the [Review Officer] is informal, inquisitorial and robust. It involves the [Review Officer] coming to his or her own view of the fairness of the substance and process of a Committee’s determination.

[40] Given those directions, my approach on this review has been to:

• (a) independently and objectively consider all the available evidence afresh;
  
• (b) consider the fairness of the substance and process of the Committee’s determination;
  
• (c) form my own opinion about all of those matters.
  

7 Deliu v Connell [2016] NZHC 361, [2016] NZAR 475.

Discussion

Procedural irregularities

[41] Ms VG’s review application focuses on two alleged procedural irregularities by the Committee.

[42] First, that the details of Mr FQ’s complaint were not provided to her and she was therefore denied an opportunity to respond to it.

[43] Secondly, that the Committee wrongly sent a copy of its determination to Mr DT, her statutory attorney under a Power of Attorney. I discuss that role further below.

Ms VG’s opportunities to respond to Mr FQ’s complaint

[44] Ms VG was given three opportunities to respond to Mr FQ’s complaint: on 25 September 2023, 30 May 2024 and 10 July 2024. The latter two dates invited submissions in connection with the Committee’s Notice.

[45] Further correspondence was sent to Ms VG on 1 August 2024, which also failed to elicit any response from her (although by then the Committee had made its decision but not finalised its reasons).

[46] These opportunities were forwarded to her by email (the emails), to what appears to have been her former practice email address. None of the emails were rejected and returned as being undeliverable.

[47] The inference to be drawn from this is that the emails were delivered to the inbox of that email address.

[48] I interpolate here that Ms VG’s attorney was Mr DT, himself a barrister and solicitor practising on his own account.8 He would have assumed that role from the time that the Tribunal made its interim order suspending Ms VG from practise.

[49] The Complaints Service and the Committee were aware that Mr DT was Ms VG’s attorney, as this information was passed on to Mr FQ by the Professional Standards Officer managing his complaint.9

8 The requirement for a sole practitioner to appoint an attorney to manage their practice in certain circumstances (including periods of suspension or following being struck off the roll of barristers and solicitors) is provided for in s 44 and Schedule 1 of the Lawyers and Conveyancers Act 2008 (the Act).

9 See Standards Committee’s Agenda Note for its meeting on 22 May 2024 at [17].

[50] Although not explicitly noted by the Committee in its determination, it appears to have proceeded on the assumption that either Ms VG had access to and therefore received the emails, or Mr DT was monitoring her practice email address and would have forwarded the emails to Ms VG’s personal email address.

Ms VG’s failure to respond to the complaint and the Notice

[51] The clear inference to be drawn from Ms VG’s review application is that she did not receive the emails. Moreover, she implies that Mr DT failed – she would say deliberately – to forward the emails to her. This seems to be her explanation for not having responded to any of them.

[52] It is a fundamental tenet of natural justice that a person must be given an opportunity to respond to any complaint that has been made about them to a statutory decision-making body. This principle is so well-known, and so well understood, that I do not need to cite any authority for it.

[53] In cases where a statutory decision-making body has reached a decision about a complaint, without the respondent having been given an opportunity to comment on it, there is a presumption of procedural unfairness on the part of the decision-maker.

[54] That can often lead to the decision being set aside and the complaint referred to the original, or another, decision-maker, with a direction that the respondent must be given an opportunity to comment on the complaint.

[55] This is what Ms VG urges me to do in her review application.

[56] I am prepared to accept that for some reason Ms VG did not receive any of the emails. It is not necessary for me to speculate as to why that might be the case. She has said that she did not receive them, and I am prepared to take her at her word about that.

[57] Despite this procedural deficiency, I am not convinced that the interests of justice, including Ms VG’s interests, require directing this Committee or another to reconsider Mr FQ’s complaint, including giving Ms VG an opportunity to respond to it.

[58] There are two main reasons for this conclusion, which I now discuss.

Factual findings uncontradicted

[59] First, Ms VG has not challenged the Committee’s factual findings about the legal work that she had done for Mr FQ, and the instructions that she had failed to follow.

[60] I infer from this that Ms VG accepts that although she initially lodged a caveat against the property as instructed, when served with the application to lapse the caveat she failed to take the necessary steps to sustain it.

[61] There was nothing remotely complicated about those instructions, and carrying them out would be meat and drink to most practitioners with Ms VG’s experience.

[62] In my assessment, reconsideration of the complaint by this or another Standards Committee will not alter those basic facts about Mr FQ’s instructions and Ms VG’s failures.

A clear breach of the Rules and a lenient penalty

[63] My second reason for declining to refer Mr FQ’s complaint back to this or another Committee is that having regard to the above uncontradicted facts, Ms VG’s conduct plainly breached r 3 of the Rules. For convenience I set that out:

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.

[64] It is inarguable that Ms VG’s failures, identified by the Committee and unchallenged by Ms VG, have put her in breach of that rule.

[65] As I have noted above, directing this or another Committee to reconsider Mr FQ’s complaint but with the benefit of a response from Ms VG, will not alter those uncontradicted facts.
[66] At best for Ms VG it would provide her with an opportunity to explain her conduct, but this could only be relevant to the issue of penalty.

[67] On that topic, the Committee took what can only be described as a very lenient approach in imposing a fine of $1,000. That is at the very lower end of the level of fines customarily imposed by the Committee or a Review Officer following a finding that there has been a conduct breach by a lawyer.

[68] In my view, Ms VG’s conduct was serious as it left her client’s interests unprotected and diminished his negotiating position. However, I am unaware of the outcome of Mr FQ’s relationship property dispute so I cannot say whether Ms VG’s conduct materially affected that outcome.

[69] Nevertheless, a much higher fine would have been justified.

[70] However in the circumstances, which include the fact that it is now approaching four years since Mr FQ first instructed Ms VG, not to mention the fact that Ms VG’s name was struck off the roll of barristers and solicitors in March 2023, I do not propose to interfere with the Committee’s penalty.10

[71] Further, it presents as entirely reasonable for the Committee to have required Ms VG to reduce her fees by a little under $1,000. After all, Mr FQ did not receive the legal services that he had asked for.

[72] It follows that the Committee’s costs order remains.

[73] For completeness, I now deal with Ms VG’s concerns about Mr DT receiving a copy of the Committee’s determination.

Why did Mr DT receive a copy of the Committee’s determination?

[74] The Committee sent both Ms VG and Mr DT a copy of its determination. Ms VG’s was sent to her practice email and Mr DT’s was sent to his practice email.

[75] In her review application, Ms VG said that she received her copy of the Committee’s determination from Mr DT.
[76] Ms VG contends that the determination was sent to Mr DT in breach of legal privilege, the New Zealand Bill of Rights Act 1990 and the confidentiality presumption under the Lawyers and Conveyancers Act 2006.

[77] Section 158, read together with ss 193 – 197 of the Act, list the persons to whom a copy of a Standards Committee’s decision or determination must be given.

[78] The list does not include the attorney of the lawyer in question.

[79] I do not consider this to be an omission from the list, as attorneys are only required to act in circumstances when the donor lawyer is unable to attend to some or all specified aspects of their legal practice.11

[80] Once a lawyer is unable to attend to some or all aspects of their legal practice, their attorney must step in and attend to those various matters on behalf of the lawyer – effectively “becoming” the constrained lawyer.

10 Auckland Standards Committee 4 v [VG] [2023] NZLCDT 8.

11 The specified areas are set out in clauses 9 (sole practitioner) and 10 (sole director of incorporated law firm) to the First Schedule of the Act.

[81] At the time that the Committee issued its determination in this matter, Ms VG’s name had been struck off the roll of barristers and solicitors. She was thus unable to attend to any aspect of legal practice. Mr DT, as her attorney, assumed the management and operation of that practice in Ms VG’s stead.

[82] It would be absurd to suggest that in those circumstances an attorney should not receive a copy of a Committee’s decision or determination relating to the donor lawyer.

[83] After all, amongst the orders made in the present matter was one requiring Ms VG to reduce her fees to Mr FQ. This is something that would require trust and office accounting steps to be completed. As to the former, an attorney’s role includes “[operating] the donor’s trust account or accounts.”12

[84] I am satisfied that the Complaints Service correctly forwarded Mr DT a copy of its determination and I reject the arguments otherwise, though briefly framed, in Ms VG’s review application.

[85] Further, it was patently not a breach of legal privilege by Mr DT to forward Ms VG a copy of the Committee’s determination. As explained above, his powers and duties as attorney in her practice required him:13

to conduct [her] practice ... and ... to do all things necessary for, or incidental to, the exercise of [that power] ... in accordance with, and subject to, [the Act] and all rules and regulations made under [the Act].

Other

[86] Ms VG goes further and says that it was Mr DT who had orchestrated Mr FQ’s complaint against her.

[87] This is an unsupported allegation. I will not deal with it any further.

Decision

[88] Pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006, the decision of the Standards Committee is confirmed.

12 Clause 9(1)(a) & (b) of the First Schedule of the Act.

13 Clause 9(1)(a) & (d) of the First Schedule of the Act.

Anonymised publication

[89] Pursuant to s 206(4) of the Lawyers and Conveyancers Act 2006, I direct that this decision may be published but without any details that may directly or indirectly identify the parties, or any other person named in this decision.

Mr DT

[90] I direct that an unredacted copy of this decision is to be forwarded to Mr DT, as Ms VG’s attorney during the Committee’s investigation. I consider it necessary to make this direction given that he was, correctly in my view, served with a copy of the Committee’s determination.

[91] In making this direction, I remind Mr DT that the details of Ms VG’s review application and the entire contents of this decision must remain confidential. He may not disclose any aspect of either to any other party except as is necessary for the purposes of his role as Ms VG’s attorney.

DATED this 22ND day of April 2025

R Hesketh

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:

Ms VG as the Applicant Mr FQ as the Respondent

Mr DT as an Interested Party [Area] Standards Committee [X] New Zealand Law Society