Ea v Abo
Jurisdiction | New Zealand |
Judge | LCRO Vaughan |
Judgment Date | 29 September 2011 |
Neutral Citation | [2011] NZLCRO 61 |
Docket Number | LCRO 237/2010 |
Court | Legal Complaints Review Officer |
Date | 29 September 2011 |
Concerning an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
Concerning a determination of the Wellington Standards Committee 2
The names and identifying details of the parties in this decision have been changed.
[2011] NZLCRO 61
LCRO Vaughan
LCRO 237/2010
LEGAL COMPLAINTS REVIEW OFFICER, WELLINGTON
Application for review under s193 Lawyers and Conveyancers Act 2006 (right of review) from a determination of the Wellington Standards Committee that the applicant held himself out as a barrister and had engaged in unsatisfactory conduct under s12 (unsatisfactory conduct defined) — respondent provided an English as a Second Language course which applicant's wife attended — applicant complained to respondent about quality of course and requested refund — initial email included applicant's auto signature as a barrister — whether applicant had been acting as a barrister — whether applicant had been providing regulated services as required by s12 — whether s12(c) only applied to the provision of regulated services — definitions of “regulated services” and “legal work” — whether a lawyer could be considered to be holding himself out as a barrister when providing regulatedservices.
This complaint arose in the course of a dispute between ABO and Mr and Mrs EA about the quality of an ESOL course offered by ABO in which Mrs EA was enrolled as a student.
Mr EA wrote by email dated 6 May 2010 to ABO expressly identifying himself as Mrs EA's husband and employer, to complain about the course, and to request a refund of the fees (or at least a waiver of the fees). At the foot of the letter he used the automatic sign off that was used by him in conjunction with his practice. This included his name, his designation as a barrister, and standard advice to persons receiving the email who were not the intended recipient.
In a further email dated 11 January, he requested certain information under the Privacy Act and the Official Information Act. With that email he enclosed a form of authority from Mrs EA which authorised the requested information to be released to him.
Ms VY, the CEO of ABO, responded by letter dated 2 February 2010, and advised that she had investigated Mr EA's complaint and found no evidence to justify a fee refund.
After further correspondence, Mr EA made a request for a wide range of information. Included with that request was a request that ABO also provide the approximate costs of complying with the request. He advised that this was required for a pending complaint to the Auditor General against ABO for wasting tertiary funds by not being pragmatic or being willing to compromise.
Other than the first email of 6 January, none of his correspondence included the “auto sign off” that was included with the first email.
At that stage, ABO consulted its solicitor, Mr VX, who wrote to Mr EA on 22 April 2010 raising various matters with regard to the content of the correspondence and his conduct. Mr VX made it clear that the correspondence from him was concerned with Mr EA's conduct and had no bearing on the recovery action by ABO in respect of its fees or Mr EA's complaint about the standard of the course.
There then ensued further correspondence between Mr VX and Mr EA concerning the allegations made by Mr VX, and in which Mr EA raised counter allegations about Mr VX's conduct.
On 3 June 2010 ABO lodged a formal complaint with the Complaints Service of the New Zealand Law Society against Mr EA. That letter raised the following matters for consideration by the Complaints Services:
1) Whether Mr EA had, through his correspondence, either by implication or expressly, threatened to make accusations against ABO (i.e. wasting tertiary funds) so as to place pressure on ABO to accede to his demand that ABO not seek recovery of the fees payable by Mrs EA and so as to obtain a benefit for her.
2) Whether he had sought to use the document disclosure demands in a vexatious manner, designed to cause ABO cost and associated embarrassment.
3) Whether, if the Standards Committee found that he had engaged in the conduct as described or other inappropriate conduct, it was appropriate conduct for a barrister.
4) Whether, if the Standards Committee found that Applicant had engaged in the conduct as described or other inappropriate conduct, that conduct had brought, or risked bringing, the legal profession into disrepute.
5) Whether, in his correspondence at the outset of the matter and prior to Mr VX writing to him, Mr EA had held himself out as a barrister acting for Mrs EA, or could reasonably be viewed as having held himself out as doing so and if so whether (1) he was acting on the basis of instructions from a solicitor; (2) he had the required independence in terms of representation.
6) If, as Mr EA contended, he was not acting as a barrister, whether his conduct in sending the email communication on 6 January 2010 and in providing the signed authority dated 11 January 2010, was misleading and deceptive, and or unprofessional, in that it created the clear impression that he was acting in his professional capacity.
At a hearing on 19 August 2010, the Committee made a finding of unsatisfactory conduct against Mr EA and indicated that no penalty other than publication was proposed. The matter was adjourned for one month to enable the parties to make submissions on the question of publication.
Following presentation of submissions by both parties, the Committee issued its determination on 11 October 2010.
The Committee found that pursuant to sections 152(2)(b) and 142(2) of the Lawyers and Conveyancers Act 2006, Mr EA's conduct constituted unsatisfactory conduct and ordered publication without identifying names or particulars. The reasons provided by the Committee were as follows:
1) In the initial letter to ABO, Mr EA held himself out as a barrister acting for his wife and this was inappropriate.
2) Having done that, Mr EA then dealt with the complaint he was making in a rude, discourteous and unprofessional manner albeit that he was asking for things which his wife was entitled to request.
3) Publication as proposed would act as a reminder to practitioners of the perils of signing correspondence or using the title of barrister and or solicitor when acting in a personal capacity.
The Committee, whilst making this finding against Mr EA, made it clear that it did not view his behaviour as extortion as had been alleged by the ABO.
Mr EA has applied for a review of the Standards Committee decision on the following grounds:
1. The conduct complained of was not engaged in at a time when Mr EA was providing “regulated services” under the Lawyers and Conveyancers Act 2006 and therefore it fell outside of conduct in respect of which the Standards Committee was empowered to make a finding of unsatisfactory conduct;
2. The Standards Committee erred in fact and law in finding that in the letter of Mr EA dated 6 January 2009 he held himself out as acting as a barrister on behalf of his wife and further erred in finding that the conduct of Mr EA in this regard was inappropriate;
3. The Standards Committee erred in fact and law in finding that the conduct of Mr EA in dealing with ABO was rude, discourteous, or unprofessional;
4. The Standards Committee failed to provide adequate reasons for its decision in that it failed to identify what aspects of the communications it found discourteous;
5. The Committee failed to answer the question of whether Mr EA was providing regulated services which was placed before it by him;
6. The Standards Committee failed to identify the basis of the finding of unsatisfactory conduct in terms of s 12 of the Lawyers and Conveyancers Act; and
7. The Standards Committee failed to adequately put Mr EA on notice as to the nature of the allegations he was facing and/or made findings in respect of allegations which were not put to him.
The Review proceeded by way of a hearing at Wellington on 7 September 2011. Mr EA and Ms VY attended. Mr EA was represented by Mr EB and ABO by Mr VX.
The Standards Committee has found that Mr EA held himself out as a barrister and that this was inappropriate. This suggests that the Committee accepted that Mr EA was not acting as a barrister and I have assumed that the Committee considered he was in breach of Rule 11.1 of the Lawyers and Conveyancers Act (Conduct and Client Care) Rules 2008. That Rule provides as follows:–” A lawyer must not engage in conduct that is misleading or deceptive or likely to mislead or deceive anyone on any aspect of the lawyer's practice.”
I have also assumed that the Committee found that Mr EA's conduct constituted unsatisfactory conduct as that term is defined in section 12(c) of the Lawyers and Conveyancers Act 2006. That subsection provides that conduct consisting of a contravention of the Act, or of any regulations or practice rules made under the Act, constitutes unsatisfactory conduct. The Conduct and Client Care Rules are made pursuant to section 94(e) of the Act.
These assumptions may not be correct but are consistent with the findings of the Committee. It would have been of considerable assistance to myself, and no doubt the parties, if the Committee's reasons had been more explicit.
Whilst the definition of unsatisfactory conduct in sections 12(a) and (b) require that the conduct occur at a time when a lawyer is providing regulated services, the definition in section 12(c) does not contain such a requirement. However, it is Mr EB's contention, that section 12 (c) also requires that the conduct in question occurs at a time the lawyer is providing regulated services. If...
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