Bi v Yp and Yo and Aat Ltd

JurisdictionNew Zealand
Judgment Date04 April 2011
Neutral Citation[2011] NZLCRO 22
Date04 April 2011
Docket NumberLCRO 115/2010
CourtLegal Complaints Review Officer
BETWEEN

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

and

Concerning a determination of the Wellington Standards Committee 1

BI of [overseas]
Applicant
and
YP and YO and AAT Ltd all of Wellington
Respondents

[2011] NZLCRO 22

LCRO 115/2010

Application for review of Wellington Standards Committee decision declining to uphold complaint against respondent practitioners and law firm concerning excessive charging and lack of effective communication — allegation that respondents had described complainant as “stroppy” — whether fees reasonable under r9 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Fees) — whether applicant treated with integrity and respect under r3 (competence and client service) — duty of a practitioner to point out perceived obstacles created by the client.

DECISION
1

In June 2010 the Standards Committee issued a decision declining to uphold complaints that had been made by Ms BI (the Applicant). She had made five complaints against AAT Limited (the law firm) and two practitioners of the law firm, namely Mr YP (Practitioner 1), Ms YO (Practitioner 2). None was upheld by the Standards Committee.

2

Having given consideration to the way the complaint was made and the joint response to the complaints by Practitioner 1, the Committee had dealt with all of the issues together and issued one decision covering all of the complaints. The review application had raised no objection to this approach, and this review application has also considered these matters in the one review.

Background
3

The Applicant who lives in [overseas] contacted the law firm after being served with Court proceedings by her former business partner (the partner) who sought orders for the sale of a NZ property that they owned as tenants in common. There was a history of conflict between the Applicant and the partner, he eventually issuing court proceedings in NZ for the sale of the property. Although their ownership was registered as tenants in common in equal shares, it appears that the Applicant's equity in the property was significantly larger than indicated by the title.

4

Before she contacted the law firm she had obtained from another lawyer (in a different NZ town) an estimate of likely fees for the sale of the property, and was given a fees indication of around $4,000. The bill she eventually got from the Practitioners was for $10,703.25. She considered this to be excessively high and wrote to the law firm to query the costs, and raising other issues at that time including the Practitioners failure to have provided the estimates she had requested. The reply she received failed to satisfy her. Her proposals to settle the account have been rejected by the law firm. She eventually made the complaint to the New Zealand Law Society.

5

The Practitioners had acted for the Applicant from April until end of July 2009. The Applicant was dissatisfied with the outcome of her complaints to the firm and then filed similar complaints to the New Zealand Law Society. She identified four areas of grievance broadly covering the attitudes of the Practitioners towards her, duplication of costs, overcharging and that the Practitioners failed to promote her interests. Arising from these were specific complaints raising poor communication, failures concerning following her instructions, informing her of which lawyer was assigned to the case, providing costs information, lack of courtesy and that they were not free of compromising influences or loyalties. In her view these matters justified a review of the fee that was charged.

6

As part of its investigation the Standards Committee appointed a costs assessor who upheld the bill as fair and reasonable. Both parties were given the opportunity to comment on the assessor's report. The earlier estimate given by the other lawyer was considered as not equivalent to the work that was actually undertaken by the Practitioners. After considering all of the information the Standards Committee adopted the costs assessment, and did not uphold any of the Applicant's complaints. The Committee concluded that there had been miscommunication or the misunderstanding of communication between the parties, but that the conduct of the lawyers did not reach the threshold that would constitute unsatisfactory conduct.

7

The Committee's decision also included the comment that the lawyers should be aware that it is unlikely the complaint would have been lodged had they communicated more effectively with their client.

Review application
8

While it made no adverse finding, the Committee had stated that the complaint may not have arisen had the Practitioners communicated more effectively with their client, a comment that appears to have led the Applicant to the view that the Committee supported her complaints. She holds the view that the Standards Committee agreed with the essence of her complaint which was that there had been ineffective communication and that her lawyers should have communicated more effectively with her. In the light of this, she considered it “ severely unfair” that she was nevertheless left to pay the full $10,703.25 bill.

9

The Applicant asked that this review address two matters arising from the Standards Committee decision, these being the “ misunderstanding of communication”, and “ whether my lawyers conducted dealings with me with integrity, respect, and courtesy.” She was of the view that the Standards Committee had not specifically addressed the concern of whether the lawyers had conducted their dealings with her with integrity, respect and courtesy. The Applicant asked for the complaint to be reinvestigated and that the Standards Committee decision be modified so “ as to reflect the share of professional obligations and responsibilities of [the Practitioners and the firm]”, or alternatively to adjust the fees based on “the allocation of responsibility [of costs] on the basis of the factual findings of the Standards Committee as they stand.” Her view was that it was the responsibility of the lawyers to communicate clearly and effectively and that the Standards Committee had found that they had not done so.

10

Both parties have agreed that the Application may be determined without a formal hearing and therefore in accordance with section 206(2) of the Lawyers and Conveyancers Act 2006 the matter is being determined on the material made available to this office by the parties.

Considerations
Standards Committee findings
11

I deal firstly with the Applicant's perception that the Standards Committee agreed with the essence of her complaint that there had been ineffective communication on the part of the Practitioners, which had led her to question why the Committee had not adjusted the lawyers' fee.

12

I do not agree with the Applicant's interpretation of the Committee's decision. The Standards Committee made no adverse finding against the Practitioners, having formed the view that the Practitioners' conduct did not reach the threshold that would constitute unsatisfactory conduct. Therefore there was no justification for a fees adjustment for that reason. For the sake of clarification, I will add that even if there had been an adverse finding, this would not necessarily have led to an adjustment of the fees in any event. An adjustment would have ultimately depended on the impact of the wrongdoing on the charges and whether there was a proper basis for an adjustment would have been considered with reference to the overall circumstances of the matter.

13

The Standards Committee had obtained a Costs Assessor's report, which was based on the Assessor's examination of the full complaint file of the Standards Committee and a telephone meeting convened with the parties which had continued for more than an hour. The Assessor was aware of the Applicant's complaints concerning services provided by the Practitioners. He recorded that attempts had been...

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