AP v ZK

JurisdictionNew Zealand
Judgment Date16 February 2011
Neutral Citation[2011] NZLCRO 8
Date16 February 2011
Docket NumberLCRO 66/2010
CourtLegal Complaints Review Officer

Concerning

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

And

Concerning

a determination of the Wellington Standards Committee 2

BETWEEN
AP

of Wellington

Applicant
and
ZK

of Wellington

Respondent

[2011] NZLCRO 8

LCRO 66/2010

Application for review of a Wellington Standards Committee decision — practitioner had acted in the estates of the applicant's parents — both parties were executor trustees of the estates — applicant complained about the fees charged by practitioner — Standards Committee concludedthe fees were fair and reasonable — however legal fees were deducted without applicants consent — contravened an express directive — practitioner guilty of unsatisfactory conduct — whether the Standards Committee was justified in holding fees were appropriate while at the same time making an adverse finding as to practitioners conduct.

Counsel:

AP of Wellington Appellant

ZK of Wellington Respondent

The Wellington Standards Committee 2

The New Zealand Law Society

DECISION
Application for review
1

An application was sought by Mr AP (the Applicant) in respect of a decision made by the Wellington Standards Committee 2 in relation to his complaints against Mr ZK (the Practitioner). The decision is dated 25 March 2010. The Practitioner had acted in the estates of the Applicant's parents. He was one of the two Executor Trustees of their estates; the other being the Applicant. The Standards Committee noted that most of the complaints raised by the Applicant had been considered before and found to be unjustified. (This was a reference to previous complaints and an earlier decision dated 12 April 2008). The Committee noted that the Applicant accepted that the current complaints covered only the period between 1 August and 24 October 2008 when the complaint was made.

2

The Committee's decision further noted that a meeting between the parties in November 2008 had resolved many of the matters in issue, but as the Applicant nevertheless wished to pursue his complaints (which included complaints about fees charged by the Practitioner), the Committee thereafter resolved that one of two bills of costs should be subjected to a costs assessment. The other bill fell below the threshold for consideration and the Committee could find no special circumstances to justify further consideration of it.

3

The Standards Committee's file showed that the Committee had arranged for a Costs Assessor to evaluate the second bill. The Costs Assessor concluded that the Practitioner's fees were fair and reasonable for the work done. His report had been forwarded to both the Applicant and the Practitioner, with an invitation to them to comment, but neither had provided any comment. After some consideration of the matter, the Standards Committee adopted the Costs Assessor's report.

4

The Costs Assessor had also, however, brought to the attention of the Standards Committee that the Practitioner had deducted his legal fees in contradiction to the express directive of his Co-Executor, the Applicant, to not do so without his prior consent. In the light of these observations by the Costs Assessor, the Standard Committee considered the appropriateness of this action in the light of a prior decision by this office, A v Z, LCRO 40/2009, wherein LCRO, Mr Webb, had concluded that consent of a client was required before fees could be deducted. The Standards Committee had noted that the Applicant had given specific instructions to the Practitioner to not deduct fees without his prior approval, a directive that the Practitioner had ignored on the basis that his authority to deduct fees came from the wills of the Applicant's parents, (presumably the charging clauses), and the Trustee Act 1956. This led to the Standards Committee finding that the Practitioner was guilty of unsatisfactory conduct.

Review application
5

The Applicant sought a review of the Standards Committee decision essentially because in the light of an adverse finding against the Practitioner, he was unable to comprehend why the Practitioner's fees were nevertheless upheld to be appropriate. He also contended that the Practitioner had charged for his time in dealing with him (the Applicant) with regard to his complaint regarding deduction of fees, which caused him to question the Costs Assessor?s assessment that their fees were appropriate. In the Applicant?s view, fees were charged by the Practitioner for dealing with the complaints and he sought to have these fees restored to the estate, together with interest and costs. He calculated this to be in the vicinity of $6,532.00 (plus GST). He also contended that the hours he had spent in pursuing his complaint against the Practitioner should also be paid for, this comprising around 120 hours, but as there is no recognised basis for self represented persons to claim the value of their time in pursuing a complaint, this will not be considered further.

6

In addition the Applicant considered that there were elements in his earlier complaints that were relevant to the period of time covered by this review. He sought to resurrect these so as to ensure a proper consideration of the current issues.

7

A review hearing was held on 26 January 2011 attended by the Applicant and the Practitioner.

Considerations
8

There are aspects of the prior complaints that have a bearing on the complaints covered by the period of time incorporated in this review and these will be referred to as appropriate.

9

I also observe that the Applicant's original complaints had been made when the Law Practitioners Act 1982 was still in force, which had a higher threshold than exists under the Lawyers and Conveyancers Act 2006 for disciplinary findings against lawyers. The later Act introduced the lower threshold of “unsatisfactory conduct”, allowing a finding of unsatisfactory conduct to be made, for example, where the conduct in issue fell below the standard of competence and diligence that a member of the public is reasonably entitled to expect of a reasonably competent lawyer, (section 12(a)) or conduct that would be regarded by lawyers of good standing as being unacceptable as conduct unbecoming or as unprofessional conduct (section 12(b)). I have kept this in mind in considering those complaints that are relevant to this review.

Planning and investment strategy
10

The Applicant submitted that the earlier failures by the Practitioner that he had complained of were still ongoing, particularly that the Practitioner had not formulated an...

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1 cases
  • Orlov v New Zealand Law Society Hc Ak
    • New Zealand
    • High Court
    • 24 August 2012
    ...116 Ibid, at [102], [105] and [116] (Blanchard, Tipping and McGrath JJ) and [145] (Anderson J). 117 Kidderminster v Orkney [2010] NZLCRO 33, AP v ZK [2011] NZLCRO 8 and CM vXI [2011] NZLCRO 118 For example, see CM v XH [2011] NZLCRO 31, at paras [15] and [16], 119 See para [46] above. 12......

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