AK v ZP

 
FREE EXCERPT

[2011] NZLCRO 6

LCRO 104/2010

Concerning An application for review pursuant to Section 193 of the Lawyers and Conveyancers Act 2006

and

Concerning a determination of the Auckland Standards Committee 1

Between
Mr AK of Auckland
Applicant
and
Mr ZP of Auckland
Respondent

Mr AK as the Applicant

Mr ZP as the Respondent

The Auckland Standards Committee 1

The New Zealand Law Society

Application for review of an Auckland Standards Committee (“the Committee”) decision that the complaint did not raise any professional standards issues — Legal Services Agency assigned respondent to act for the applicant in respect of criminal charges — respondent prepared an application to vacate a guilty plea for the applicant — applicant alleged billing was inappropriate and concerns relating to decisions made as to witnesses — whether the Committee decision was the appropriate one to be made in all the circumstances.

Held: As the LSA assigned P to K, any billing issues were first to be referred to the LSA, which K did. There was no evidence that K had taken the further step of applying for an examination of invoices pursuant to s38 Legal Services Act (aided person may request examination of costs of services) as he was invited to do by the LSA. It was reasonable to assume that the LSA would have looked over the complaint and queried any practices, such as double billing, alleged by K.

A practitioner needed to be certain of the reliability of a witness. P was unwilling to call one potentially hostile witness (a work colleague of K) without being sure as to what the evidence would be, but ultimately acted in accordance with K's directions. There could be no criticism for this. P interviewed another witness (K's son) alone and K complained his son became upset. There could be no criticism for P interviewing the son alone as it was important to know what evidence a witness would give, and what the son might say under oath during cross-examination may have differed to what he would say in an interview with his father present.

K said that P was late on one of the days of the hearing and was slow in progressing the case. However there was no criticism in this regard from either the Judge or the LSA. There was also an allegation of a failure to respond to phone calls and emails. It was clear that the situation had become heated between K and P. P's behaviour in this regard may have been further investigated but there was no doubt that K himself contributed in no small way to the exchange and the breakdown in the relationship.

The Committee's decision was appropriate in the circumstances

Decision confirmed pursuant to s211(1)(a) Lawyers and Conveyancers Act 2006 (powers exercisable on review).

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

DECISION
Background
1

The Respondent was assigned by the Legal Services Agency to represent the Applicant in respect of criminal charges.

2

At the time of his appointment, the Applicant had pleaded guilty to the charges and been offered diversion.

3

However, the Applicant declined to accept that he had committed the offences and accordingly the Respondent prepared an application to vacate the guilty plea.

4

The complaint arose out of the conduct of this Application by the Respondent and the breakdown of the relationship between the parties.

The Complaint
5

In his complaint, the Applicant alleged that:

  • • There was inadequate communication between himself and the Respondent, and that the Respondent failed to respond to emails and phone messages.

  • • The service provided was inadequate.

  • • He had concerns relating to decisions made as to witnesses.

  • • There were inappropriate comments made by the Respondent.

6

In addition, the Applicant made a number of allegations concerning billing by the Respondent, describing it as over and double billing. He made a number of comments in conjunction with this relating to his perception of the Respondent's lifestyle.

7

The outcome sought by the Applicant was that the Respondent should be required to repay all fees paid by the Legal Services Agency, and that compensation in the sum of $50,000 should be paid to him for hardship, humiliation and time wasting.

The Standards Committee Decision
8

The Standards Committee considered all of the material before it and formed the view that the complaint did not raise any professional standards issues.

9

The material considered by the Committee included the complaint, the Practitioner's response and further comments by the Applicant.

10

As a result of the Committee's view, it determined that no further action in respect of the complaint would be taken and resolved accordingly pursuant to s 138(2) of the Lawyers and Conveyancers Act 2006 (“the Act”).

Application for Review
11

In his application for review, the Applicant has in essence sought that the LCRO re-examine the complaint in full.

Review
12

In conducting this review, I have considered the Standards Committee file and correspondence received by this office.

13

The parties agreed that the review may be carried out on the basis of the information before me, and consented accordingly pursuant to s 206 (2) (b) of the Act.

Billing
14

One of the main aspects of the complaint and the application for review relates to what the Applicant considers to be over and double billing, as well as pointing to various actions taken by the Respondent which he states was only designed to increase the fees chargeable by the Respondent.

15

...

To continue reading

REQUEST YOUR TRIAL