FR v US

 
FREE EXCERPT

[2011] NZLCRO 64

Legal Complaints Review Officer, Auckland

LCRO 249/2010

Concerning an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006

and

Concerning a determination of the Auckland Standards Committee 4

BETWEEN
FR

of [South Island]

Applicant
and
US

of Auckland

Respondent

FR as the Applicant US as the Respondent

Auckland Standards Committee 4 The New Zealand Law Society

The Secretary for Justice (with the Applicants details anonymised)

Application for review of Standards Committee decision to take no further action against practitioner — complaint that practitioner imparted information given to her in confidence and used position and influence as barrister to damage applicant's relationship with his father — practitioner acting as support person for father under Protection of Personal and Property Rights Act 1998 — whether practitioner provided regulated services — whether there had been a breach of r8 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (duty of confidence) or r6 (client interests — duty to protect and promote) — whether practitioner “used her position and influence as a barrister to convince the father that the applicant was out to get his money”.

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

The issues were: whether the practitioner had been engaged in the provision of regulated services; whether there had been a breach of r8 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (duty of confidence) or r6 (client interests — duty to protect and promote); and whether the practitioner “used her position and influence as a barrister to convince the father that the applicant was out to get his money”.

Held: There was a fundamental difficulty in forming a view as to the impact of the actions taken by the practitioner because, there was no evidence of what she actually said to the father, or what she may or may not have done in her role as support person after the complaint was lodged. It might well be that the unfortunate result of her involvement with the father was that the father's relationship with the applicant was impaired or worse, but that result in itself could not justify any negative finding against her.

The question was whether the practitioner gave the father advice in relation to any legal or equitable rights or obligations. It seemed rather, that the practitioner, having accepted the father's request to be his support person, carried out that role by being helpful in suggesting he contact his court appointed lawyer for information and advice. Whether she did more was unknown. The tone of some of her last emails to the applicant suggested she might have, but there is no evidence of what she actually said. Consequently, it was not possible to fairly judge whether she crossed the line from being a helpful support person to actually giving legal advice.

The practitioner advised the applicant that she had received instructions to seek leave to appear before the Family Court for the father. Applying the practitioner's written words and contemplated actions left a suspicion that the nature of support provided (and/or intended to be provided to the father) may have come very close in some instances to providing regulated services. It was only conduct of the practitioner up until the date on which the complaint was lodged that could be considered. On the balance of probabilities the practitioner did not provide regulated services and her conduct therefore did not fall to be considered within the definition of unsatisfactory conduct.

There was no breach of r8 or r6. Rule 8 required lawyers to “protect and to hold in strict confidence all information concerning a client … acquired in the course of the professional relationship”. For this rule to apply there had to be a client-lawyer relationship in existence when information was obtained. There was no sustainable suggestion that the practitioner was acting for the applicant. Even if the practitioner was providing regulated services for the father, her obligation related to information about the father, not (in this case) the applicant. Rule 6 provided that “In acting for a client a lawyer must, within the bounds of the law and these rules, protect and promote the interests of the client to the exclusion of the interests of third parties.” The applicant was not the Practitioner's client, and if the father was her client, she was then duty bound to promote and protect his interests, exactly as she was alleged to have done by resisting the making of a final PPPR order. Consequently, there could be no breach of this rule.

There was no sustainable evidence that the practitioner “used her position and influence as a barrister to convince the father that the applicant was out to get his money”. She was never intending to act as a lawyer, only as the father's support person, but in reality as a barrister she brought to the situation a knowledge of the law and sensitivity to the father's strict rights that would be very unusual with most “support persons”. In supporting the father, her highly regarded former colleague and referee, and ensuring he received the full benefit of his rights, she appeared to have derailed the understandable and well-intended efforts of the applicant to remedy his father's financial problems.

The facts suggested that the practitioner was not directly responsible for the father learning of his son's role, but undoubtedly her “support” was of a level and commitment that may have been in some regards excessive, and certainly affected the intentions of the applicant and health professionals. From the applicant's justified perspective, especially with its relationship consequences, this had been a disaster, but the bottom line was that the practitioner's proven actions did not breach the provisions of the Lawyers and Conveyancers Act or the Conduct and Client Care Rules.

Decision of Standards Committee confirmed.

DECISION
1

This is an application for review of a decision of Auckland Standards Committee 4 which considered a complaint by FR (the Applicant) against US (the Practitioner). The Standards Committee resolved to take no further action on the complaint and the Applicant seeks a review of that decision.

Background
2

This matter arises out of the involvement of the Practitioner with proceedings under the Protection of Personal and Property Rights Act 1998 (PPPR Act) with regard to the Applicant?s aged father.

3

The Applicant is the only child of his father and his father?s first wife who died some thirty years ago. The father lives in his own home in Auckland, while the Applicant and his family reside in the South Island. The Applicant?s father remarried in 1998, that marriage lasting ten years. It seems that the father remains on good terms with his former wife who is also clearly close to her stepson, the Applicant.

4

It appears that for some years, the Applicant?s father had been responding positively to letters he received from overseas which are often described as “scams”. There is no detail provided regarding the father sending amounts of money overseas, but according to the Applicant the father?s financial position has gone from having significant sums of money in the bank (assisted by the sale of a property) to more recently, borrowing money, and therefore being in debt for over $100,000.00. More specific detail is provided in the papers filed by the Applicant but suffice to say, the Applicant had concerns about his father?s behaviour and “his subsequent dire financial situation”. This led him in late 2009 to contact his father?s doctor with his concerns. This in turn, led to the father being assessed and diagnosed as having some degree of dementia.

5

As a result the Auckland District Health Board Mental Health Services for Older People personnel initiated an application to obtain a temporary Property Order pursuant to the PPPR Act. Counsel was appointed to represent the father.

6

The Applicant assisted the Auckland District Heath Board staff members to draft the application for the order, but was surprised when he read the documents prepared for the application. These included details about himself and information provided by him, which he was concerned would damage his relationship with his father.

7

The application for the temporary Property Order was finalised on 29 March 2010.

8

About three months earlier the Applicant?s stepmother, informed him that the Practitioner, a long time friend of the father and someone known to the Applicant?s stepmother, had asked her to pass on her email address and phone number to the Applicant. According to the stepmother the Practitioner offered to “pop in on [the father] from time to time and keep a friendly but discreet eye on things”. On 27 January 2010, the Applicant therefore sent a lengthy email to the Practitioner advising her of the situation as he saw it, and encouraged her to make visits to his father.

9

It seems that both that email and a follow-up one did not reach the Practitioner, but contact was certainly established in early April, a week or two after the temporary Property Order was made. Relations between the two were cordial. In an email from the Practitioner to the Applicant dated 10 April 2010 she provided the Applicant with her private address details, commenting that it was “good to talk and get an assurance that [the father] is being well protected (even if he isn?t going to like it) before some real harm comes to him”. This email refers to...

To continue reading

REQUEST YOUR TRIAL