Bi v Yp and Yo and Aat Ltd

 
FREE EXCERPT

[2011] NZLCRO 22

LCRO 115/2010

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

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

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.

Held:The comment regarding the respondent's communication was not an adverse finding, and there was no justification for a fees adjustment for that reason. Even if there had been an adverse finding that would not necessarily have to led to an adjustment. It was open to the Committee to come to that decision despite observing that communications could have been better.

The Committee had obtained a costs assessor's report which had been considered. It confirmed the fees as reasonable. The work undertaken by the respondents was not the same as the work quoted for in the estimate provided by the other practitioner.

There was no evidence that one of the practitioners had used the word “stroppy” to refer to BI. The practitioner had been cautioning BI that there was a danger that her insistence on some matters and reluctance to compromise might give her former partner and his lawyer the impression that she was being stroppy and trying to control the process. This was not an example of empathy with the other side. It was clear that the respondents had perceived BI's approach as contributing to the difficulties in progressing the sale. It was incumbent on a lawyer to make it known to the client any matters that they identified as obstacles to progressing work.

While a lawyer should not be criticised in a professional disciplinary forum for pointing out obstacles to the client, including those created by the client themselves, the manner in which they did so may be subject to examination with reference to r3 Client Care Rules. In this case it had been appropriate for the practitioner to discuss with BI the impact of her proposals and the degree of assertiveness of the practitioner had to be considered in the context of the matter. The respondent practitioner had a duty to fully and frankly advise BI on the implications of her instructions. Her language had not been inappropriate and she went no further than was necessary to impress on BI her concerns. The advice had been firm but had not been inappropriate in the overall circumstances.

Pursuant to s211(1)(a) LCA (powers exercisable on review) the decision of the Committee was confirmed.

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...

To continue reading

REQUEST YOUR TRIAL