Canterbury Westland Standards Committee v Paul Brian Currie

 
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[2015] NZLCDT 15

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

CHAIR

Judge BJ Kendall(retired)

MEMBERS OF TRIBUNAL

Mr W Chapman

Mr M Gough

Mr A Lamont

Mr S Maling

LCDT 040/14

BETWEEN
Canterbury Westland Standards Committee 3 of the New Zealand Law Society
Applicant
and
Paul Brian Currie
Respondent
Counsel:

Ms A Cunninghame for the Applicant

Mr M Wallace for the Respondent

Decision as to penalty — the respondent practitioner admitted unsatisfactory conduct — Standards Committee withdrew alternative misconduct or negligence charges — respondent charged office expenses as a set percentage of the fee value — also added an uplift to Land Information New Zealand disbursements — did not disclose to the clients that fact or the extent of the added charges — transactions spanned a period of 12 months and the total expenses charged were $31,661, being nine per cent of total fees of $349,017 — practitioner and Committee agreed a penalty — respondent said he should only have to pay a reasonable contribution to the actual costs of the Committee as Tribunal could have reached the end decision as to penalty without recourse to the Tribunal — what penalty should be imposed and how much the practitioner should pay in costs.

The issue was: what penalty should be imposed and how much the practitioner should pay in costs.

Held: The sums involved justified the Committee referring the charges to the Tribunal. The early admission of the respondent together with the fact of his frankness and cooperation persuaded the Tribunal that the penalty agreed on was an appropriate outcome of the process. The respondent was to pay the costs of the Committee in the sum of $9,141. The respondent was to refund to the New Zealand Law Society the Tribunal's costs fixed in the sum of $2,534.

DECISION OF THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL CONCERNING CHARGES AND PENALTY
1

The respondent was charged on 21 November 2014 with misconduct and in the alternative with unsatisfactory conduct or negligence in that in the period from 1 October 2013 to September 2013 he:

  • a. Charged Land and Information New Zealand (“LINZ”) disbursements to clients as an ‘agency fee’ when those charges and disbursements were not actually incurred by him or his firm and without his client's knowledge of the nature or extent of the charges incurred; and

  • b. Charged clients a variable “office expense” above those expenses properly incurred, without his clients' knowledge of the nature or extent of the charges.

2

The allegation was that such charges contravened the following Rules made under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008:

a. Rule 3.1(a)(sic) but correctly Rule 3.4(a)

A lawyer must, in advance, provide a client with information in writing on the principal aspects of client service including … the basis on which fees will be charged …

b. Rule 3.6

If information provided by a lawyer in terms of rule 3.4 … becomes inaccurate in a material respect, the lawyer must ensure that the information is updated with due expedition …

c. Rule 9

A lawyer must not charge a client more than a fee that is fair and reasonable for the services provided, having regard to the interests of both client and lawyer and having regard also to the factors set out in rule 9.1.

d. Rule 11.1

A lawyer must not engage in conduct that is misleading or deceptive or likely to mislead or deceive...

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