AI v ZR
 NZLCRO 7
Concerning An application for review pursuant to Section 193 of the Lawyers and Conveyancers Act 2006
Concerning a determination of the Auckland Standards Committee 1
Mr AI as the Applicant
Mr E as the Applicant's Counsel
Mr ZR as the Respondent
Mr N as an interested party Auckland Standards Committee 1 The New Zealand Law Society
Application for review of Auckland Standards Committee decision to take no further action in respect of the applicants' complaint against the respondent. The respondent represented the applicant in respect of charges heard in the Family Violence Court. Both parties thought that on completion of a non-violence programme the applicant would be discharged without conviction. No formal application under s106 Sentencing Act 2002 was made until five months later and it failed due to a forged affidavit of the applicant. Applicant lodged a complaint against the respondent — whether the conduct of the respondent fell short of the standards of competence and diligence of a reasonably competent lawyer.
The names and identifying details of the parties in this decision have been changed.
Held: The obligation to correctly record proceedings at the hearing and understand the consequences of the orders made at the time rested with R. Given the discrepancy between what R stated in his letter and the transcript of the first hearing, this did not occur.
After the second hearing it should have been apparent that the understanding of the parties was incorrect. No evidence was presented to show that R considered he should take any steps at that time to assist I. After the third hearing when I was again unsuccessful, seeking a transcript of the first hearing should have presented as a step R should have taken. On R's own evidence the outcome that the parties both expected after the first hearing was one he considered an unusual outcome. When problems arose at the second hearing R should have recognised that something was amiss and needed further investigation.
R did not in fact make submissions indicating his client was seeking discharge without conviction at the first hearing. R did not accurately record either his submissions or the decision of the Court. R failed to note the significance of a conviction being entered at the first hearing. R did not make a s106 SA application when he should have. R did not enquire whether a transcript of the hearing was available relying on a response received some time previously when a transcript had not been available. R was not in any way responsible for the forged affidavit.
R's conduct fell short of the standards of competence and diligence that a member of the public could reasonably expect of a competent lawyer. R conduct breached s12(a) (unsatisfactory conduct defined in relation to lawyers). Standards Committee decision modified accordingly. It breached r3 LCA (lawyers: Conduct and Client Care) Rules 2008 (lawyer must always act competently and in a timely manner) and therefore was a breach of s12(c) LCA.
Bills reviewed downwards as extra costs would not have been incurred if the matter had followed its proper course. No allowance for stress and anguish as this was the result of the Applicant's conduct in seeking to pervert the course of justice by filing a forged affidavit
The following orders are made:
1. Pursuant to s156(1)(f) of the Act the Respondent is to cancel bill # 254412 dated 29 October 2009 in the sum of $486.
2. Pursuant to s156(1)(e) of the Act the Respondent is to reduce the fee content of bill # 256062 dated 30 November 2009, by the sum of $468. This means that the bill now comprises
A certificate pursuant to s161(2) of the Act is included with this decision.
3. The Respondent is ordered to pay to the New Zealand Law Society within 30 days of the date of this decision, the sum of $900.00 in respect of costs incurred in conducting this review.
In January 2009, the Applicant instructed the Respondent to represent him in respect of charges laid against the Applicant to be heard in the Family Violence Court.
Following discussions by both the Applicant and the Respondent with the officer in charge, it was agreed that the Applicant would plead guilty to the charges on the understanding that the Police would take no further action in respect of other complaints by the Applicant's partner.
On 10 March 2009, the Applicant appeared before Judge Epati at the Manukau District Court and was represented by the Respondent.
A plea of guilty was entered to the charges.
In his letter to the Complaints Service of the New Zealand Law Society (“NZLS”) dated 18 March 2010, the Respondent states that he enquired of the Court whether a discharge without conviction would be available to the Applicant.
He states further that Judge Epati replied that in order to have the Court consider a discharge without conviction, the Applicant would need to complete a non violence programme and an updated Victim Impact Report would be required, in which the complainant indicated that she consented to a discharge without conviction being entered.
The matter was adjourned to 26 June 2009 to enable these matters to be attended to.
Both parties proceeded on the basis that this represented the correct state of affairs, leaving the Applicant with the understanding that, providing the non violence programme was completed and the complainant did not oppose a discharge, a discharge without conviction would be the outcome at the next Court date.
From the transcript of the hearing obtained by the Applicant on 8 October 2010 (i.e. after the Standards Committee decision) it is apparent that the Respondent's summary of the Court hearing is incorrect. There was no enquiry by the Respondent as to whether a discharge without conviction would be available to the Respondent.
As the transcript reveals, the Respondent accepted the summary of facts (with some demur as to the details) and submitted that the assault was on the lower end of the scale. The transcript also records that he indicated that the Applicant was amenable to attending a living without violence programme.
Crucially, the transcript shows that the Applicant was convicted on both charges, and remanded to 26 June 2009 for sentencing.
Given the understanding that the Applicant had with regard to what would occur at the hearing on 26 June, he took the decision to appear at that hearing without representation. His expectation was that all that was required was that he show he had completed the course and the Victim Impact Report would show that the Complainant did not object to the discharge without conviction.
That did not occur. Instead, he was advised by the Court, that to obtain a discharge without conviction, a formal application pursuant to s106 of the Sentencing Act 2002 was required. The matter was adjourned.
The Respondent says he has diary notes recording that he met with the Applicant to discuss the position after that hearing. The Applicant says there was no such meeting, and I note that there is no record of any meeting in the Respondent's time sheets. It is logical that the parties would have met after the hearing to discuss how to approach the next hearing which I am told took place on 31 July, unless of course there was no hearing on that date.
To a large extent, whether or not a meeting took place as asserted by the Respondent is irrelevant to this review.
In his letter of explanation dated 18 March 2010, the Respondent states that he explained to the Applicant at that meeting that the basis of his application for a discharge without conviction was the indication given by the Judge that the Court would consider the application once he had completed the non violence course and the Victim Impact Report was favourable.
The Respondent remained of the view that a formal application pursuant to s106 was not necessary, and suggested that the Applicant try again to get the Court to act on Judge Epati's indication.
It must be remembered, that the transcript shows that there was no such indication given by the Judge. Unsurprisingly therefore the Applicant was again advised by the Court at the next hearing that a discharge was not available without a formal application. The matter was adjourned again to 30 October 2009.
On that date, the Applicant appeared again, this time represented by the Respondent.
The Respondent remained convinced that the Judge had given an indication that a discharge without conviction would be favourably considered. However, no formal application pursuant to s106 had been made at that stage.
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