CK v SE
| Jurisdiction | New Zealand |
| Judgment Date | 23 November 2021 |
| Neutral Citation | [2021] NZLCRO 195 |
| Docket Number | Ref: LCRO 008/2021 |
| Court | Legal 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 [City] Standards Committee [X]
[2021] NZLCRO 195
Ref: LCRO 008/2021
LEGAL COMPLAINTS REVIEW OFFICER
ĀPIHA AROTAKE AMUAMU Ā-TURE
Law Practitioners — application to review a decision by an Area Standards Committee to take no further action on a complaint against the respondent who had presented the applicant's sister in a Trust dispute — requiring a lawyer not to communicate a client's acceptances until siblings had communicated their responses — duties owned to non-clients — undertakings — Lawyers and Conveyancers Act 2006 — Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008
In accordance with s 213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:
Mr CK, as the Applicant
Ms SE, as the Respondent
[City] Standards Committee [X]
New Zealand Law Society
The Secretary for Justice
Mr CK, at the relevant time a trustee of his parents' trust, has applied for a review of a decision by the [City] Standards Committee [X] (the Committee) to take no further action in respect of his complaint concerning the conduct of Ms SE, a barrister who acted for Ms AF, one of Mr CK's two sisters, in a dispute with Mr CK.
Ms AF, Mr CK and their sister were beneficiaries of the trust. The dispute concerned the proposed resettlement of the trust's assets into the beneficiaries' respective trusts. Ms AF first sought legal advice from Ms SE in October 2012.
As set out in more detail in my later analysis, Ms SE received an email from, and spoke with the trust's lawyer on 14 and 19 March 2013 respectively. On 8 April 2013 Ms SE informed (by letter, email) the trust's lawyer of Ms AF's acceptance of the trustees' resettlement proposal.
In that letter Ms SE explained because the three beneficiaries had to agree with the proposal, Ms AF's instructions were that the other two beneficiaries not be informed of her acceptance until they had “communicated” to the trustees “their response to the trustees[’ resettlement proposal]”. Ms SE further explained this meant Mr CK would receive her letter “after” he “confirmed his response” to the proposal.
Eight months later, on 23 December 2013, following a further exchange of written communications with the trust's lawyer that month, Ms SE told the trust's lawyer, among other things, she would provide “a separate letter” setting out Ms AF's “special circumstances which made it impossible or impracticable for [Ms AF] to provide security” for a loan to her proposed by the trustees.
Following settlement of the dispute, in his 28 July 2017 email to Ms SE in which he refers to Ms SE having acted for Ms AF “[s]ome years” earlier, Mr CK alleged (a) a breach of ethical standards by Ms SE in having asked the trust's lawyer, in her 8 April 2013 letter, to withhold that letter from him until he had “confirmed his response” to the trustees' resettlement proposal, and (b) Ms SE had not honoured her undertaking, contained in her 23 December 2013 letter to the trust's lawyer, to provide the “separate letter” referred to above. 1
Mr CK sent a reminder (by email) to Ms SE on 1 November 2017. The following day Ms SE informed (by email) him that taking into account her professional duties owed to Ms AF she could not comment on the contents of Mr CK's 28 July email without Ms AF's authorisation.
Mr CK lodged a complaint with the Lawyers Complaints Service (LCS) on 3 September 2020.
He sought a determination that Ms SE had breached professional ethics by “specifically ask[ing]” the trust's lawyer in her letter of 8 April 2013 not to provide Ms AF's “acceptance of a proposal” to [Mr CK] “until [the trust's lawyer] had received [Ms CK's] response to the proposal”.
In Mr CK's view, by making that request, Ms SE contravened r 10.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules). 2
Mr CK claimed Ms SE, in her 23 December 2013 letter to the trust's lawyer, as well as acknowledging the trustees had offered Ms AF a loan, undertook to provide the “separate letter”, referred to above, to the trust's lawyer. 3
Mr CK says by failing to provide that letter Ms SE breached her undertaking and thereby contravened r 10.3. He says Ms SE did not qualify her undertaking by stating it was provided on behalf of her client, Ms AF. 4
Mr CK also claimed Ms SE (a) by not responding to his 28 July 2017 letter until 2 November 2017 contravened r 12, and (b) by not making her response to the trust's lawyer had contravened r 10.2. 5
He explained he remained “dissatisf[ied]” with Ms SE's response, and he lodged his complaint with the LCS three years later.
I refer to Ms SE's response in detail in my later analysis. 6
In essence, Ms SE said in accordance with her client's, Ms AF, instructions which were privileged, she sent her 8 April 2013 letter to the trust's lawyer. In doing so she said she did not consider she contravened the Rules.
The Committee delivered its decision on 24 November 2020 and determined, pursuant to s 137(2), and s 138(2) of the Lawyers and Conveyancers Act 2006 (the Act), that no further action on the complaint was necessary or appropriate.
The Committee concluded (a) Ms SE's 8 April 2013 request of the trust's lawyer “may have been naive and ill thought out”, but did not constitute “a breach of the Rules”, and (b) there was “nothing in the correspondence suggest[ing]” Ms SE “was attempting to induce” the trust's lawyer to breach his professional obligations owed to his client, Mr CK.
The Committee noted Ms SE, when acting for Ms AF “some years ago” to “bring about a resolution” of a family dispute, had a professional duty to protect and promote Ms AF's interests. For that reason, the Committee stated Ms SE's professional obligations concerning, and duties owed to Mr CK, who was not her client, “were limited”.
The Committee also stated that by “immediately forward[ing]” Ms SE's letter to Mr CK, the trust's lawyer had not contravened r 7. 7
Concerning Ms SE's response that her communications with Ms AF were protected by professional privilege, the Committee said it “had no information about what lay behind” Ms SE's request of the trust's lawyer.
In the Committee's view, Ms SE's statement in her 23 December 2013 letter to the trust's lawyer she would “write a letter” was not an undertaking, and therefore her failure to write the letter was not a contravention of rule 10.3.
Mr CK filed an application for review on January 2021 in which he says the Committee's “key conclusion” is wrong. He says he believes the Committee (a) failed to comment upon “key points” in his submissions, and (b) may have had “an unconscious bias” in respect of complaints about a lawyer that arise from a family dispute.
Mr CK contends it was unethical of Ms SE to ask the trust's lawyer's “to do something” [the trust's lawyer] could not do without breaching the [trust's lawyer's] obligations to [Mr CK]”.
For that reason, he says he disagrees with the Committee's statement that there was “[n]othing in the correspondence [that] suggested” that Ms SE “was attempting to induce” the trust's lawyer's to do so.
He says he also disagrees with the Committee's comment that Ms SE, who he says had been in practice for 30 years at the time she made that request, “may have been naive” and her request “ill thought out”.
In his view, assuming Ms SE was “fully aware of the implications” of her request, then she would have known “exactly what she was doing” in which case by making the request she contravened r 10.1.
Mr CK says the Committee did not consider his claim that Ms SE, knowing he had been represented by the trust's lawyer, ought to have directed her response to his 28 July 2017 email to the trust's lawyer, not to him. He claims by not doing that Ms SE contravened r 10.2.
He says because this aspect of his complaint concerned Ms SE's 8 April 2013 letter to the trust's lawyer, he “can't see how [Ms SE] can argue she didn't know” the trust's lawyer acted for him.
Mr CK says he similarly disagrees with the Committee that (a) if, in stating Ms SE was “attempting” to resolve the family dispute it followed Ms SE “was doing everything in her power to resolve the dispute efficiently and fairly”, and (b) it was “excusable” if, in sending her 8 April 2013 letter to the trust's lawyer, Ms SE had as described by the Committee been “naïve” and the letter “ill thought out”.
To illustrate his position, Mr CK refers to his complaint in which he described Ms SE having “slow[ed] the dispute resolution process down” by being “disingenuous and deliberately obtuse”. He repeats Ms SE “stall[ed] the proceedings” by making out she did not know “the difference between a loan and a distribution”.
He says he is frustrated the Committee assumed Ms SE was acting in Ms AF's “best interests” at “all times”.
In support of his view that there may have been “unconscious bias” by the Committee, Mr CK refers to a section on Law Society's website about how lawyers ought to respond to complaints which characterises “family law matter[s]” as a possible source of trivial or vexatious complaints.
In her response, Ms SE says she relies on information she provided to the Committee in response to Mr CK's complaint. 8
Ms SE...
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