Ea v Abo

 
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[2011] NZLCRO 61

LEGAL COMPLAINTS REVIEW OFFICER, WELLINGTON

Judges:

LCRO Vaughan

LCRO 237/2010

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

BETWEEN
EA,
Barrister of Lower Hutt Applicant
and
ABO (Ms VY)
of Wellington Respondent

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

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.

The issues were: whether EA had been acting as a barrister; whether EA had been providing regulated services as required by s12 LCA; whether s12(c) LCA applied to the provision of regulated services; whether EA had been providing legal services; whether a lawyer could be considered to be holding himself out as a barrister when providing regulated services.

Held: While the definition of unsatisfactory conduct in s12(a) and s12(b) LCA (conduct of lawyer occurred when providing regulated services) referred to regulated services, the definition in s12(c) LCA (conduct consisting of a contravention of this Act, or of any regulations or practice rules) did contain such a requirement. The wording of s12(c) LCA differed from s12(a) and s12(b) and it was wrong to incorporate a requirement that a lawyer had to be providing regulated services before that subsection applied. On that basis, a lawyer could be exposed to a finding of unsatisfactory conduct if the conduct was in breach of the LCA and Rules even if not providing regulated services. Section 12(c) was not restricted to circumstances where the lawyer was providing regulated services. It had been open to the Committee to find that EA had breached r11.1.

The notification of the basis on which EA had written to ABO (as husband and employer) had been neutralised by the formal sign off which identified EA as a barrister. He had demanded information under various legislation and had provided an authority from Mrs EA to obtain personal information which also included the right for EA to advocate on her behalf in various forums, including any court or tribunal. Only lawyers could appear in court on behalf of others. The fact that EA stated that Mrs EA was his spouse and employee did not mean that he could not also write in his capacity as her lawyer and the tone of the correspondence left the impression he was acting as a lawyer. Section 12 LCA had to be construed broadly and consistently with the wider purpose of the legislation to include any conduct which occurred within the practice of law.

“Regulated services” meant “legal service” which was defined under s2 LCA as “services that a person provides by carrying out legal work for any other person”. “Legal work” included advice in relation to any legal rights or obligations as reserved work. “Reserved areas of work” included work carried out by a person giving legal advice. Mrs EA had authorised EA to act as her advocate. The recipient had been entitled to take the words of authority as meaning what they said. Lodging a complaint with an education institution constituted legal work. Whether or not a person was providing regulated service was determined more by the nature of the work than the capacity in which work was undertaken. EA had provided regulated services and s12(a) and s12(b) LCA were applicable to his conduct.

Having found that EA had provided regulated services, his conduct could not be considered unsatisfactory conduct for breaching r11.1 by reason of the fact he had held himself out as a barrister. The Committee had also failed to refer to any rules when it made its findings EA had been discourteous and unprofessional. In the circumstances the only option was to reverse the finding of the Committee and return the matter back to the Committee for reconsideration.

Pursuant to s211(1)(a) LCA powers exercisable on review) the decision of the Committee was reversed. Pursuant to s209 LCA (power to direct reconsideration) the Committee was directed to reconsider the matter.

Background
1

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.

2

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.

3

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.

4

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.

5

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.

6

Other than the first email of 6 January, none of his correspondence included the “auto sign off” that was included with the first email.

7

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.

8

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.

9

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.

Standards Committee decision
10

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.

11

Following presentation of submissions by both parties, the Committee issued its determination on 11 October 2010.

12

The Committee found that pursuant to sections 152(2)(b) and 142(2) of the Lawyers and Conveyancers Act 2006, Mr EA's conduct...

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