FR v US
| Jurisdiction | New Zealand |
| Judgment Date | 17 November 2011 |
| Neutral Citation | [2011] NZLCRO 64 |
| Date | 17 November 2011 |
| Docket Number | LCRO 249/2010 |
| 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 Auckland Standards Committee 4
of [South Island]
of Auckland
[2011] NZLCRO 64
LCRO 249/2010
Legal Complaints Review Officer, Auckland
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”.
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)
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.
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.
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.
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.
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.
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.
The application for the temporary Property Order was finalised on 29 March 2010.
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.
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 copies of “legal documents or confidential documents” being sent to her office box number which the Applicant states the Practitioner had requested him to send her. The Applicant states in his complaint that he did not do so because he had concerns “after a couple more emails from her… [that] she would not be able to separate her legal and friendship hats”.
Matters moved on, with the Practitioner at the father?s request becoming his “support person” in terms of the PPPR Act. She attended a meeting with counsel for the father at counsel?s request and also met with him together with the father. It seems that when the father became aware of the ex parte order having been made the Practitioner advised him to contact his Court appointed counsel for advice and to obtain a copy of the papers.
Friendly emails passed between the Applicant and the Practitioner in April 2010 but by mid May into June 2010 the tone had become more formal, and in an email dated 18 May 2010 the Practitioner commented how “appalled [she was] at how badly this whole matter has been managed”. She noted that “it would be difficult to imagine how much worse it could have been. It is simply a disgrace and [the father] deserves better. He needs to know his rights and be supported in enforcing them. I have written to his lawyer…stating exactly that”.
As a result of his father being made aware of the Applicant?s role in instigating the process, and the detail of the information provided by the Applicant to the District Health Board, it would appear that their relationship deteriorated. The Applicant complains that this was largely as a result of the Practitioner imparting information to his father that he had provided to her in confidence.
The Applicant formally complained to the Complaints Service of the New Zealand Law Society on 9 July 2010 that “the Practitioner has used her position and influence as a barrister to convince my father that I am out to get his money and has subsequently caused the destruction of, or at least severely damaged, the relationship between my father and me”. He included the following detail:–
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1) That the Practitioner had deliberately and unprofessionally ignored the facts to justify her position.
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2) That she had not been instructed by a solicitor to act for the father and maintained that she was acting as a friend.
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3) That she had breached the confidences of the Applicant and his father?s former wife to satisfy her own objectives.
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4) That she had impugned his reputation with the accusation that he was trying to get his father into a rest home and sell his house. The Applicant expressed concern that the Practitioner would attempt to persist with these views in the upcoming judicial conferences and hearings.
He went on to elaborate upon the summary above, and attached relevant correspondence and emails.
The main thrust of the Practitioner?s responses on 21 July and 10 August 2010 was, and remains, that she was not, nor purported to be, anything other than the father?s support person who had no complaint with the court appointed counsel for the father. She stated in her 21 July response that at counsel?s request she was to prepare an affidavit and be a witness in support of the father. She went on to foreshadow that she “[might] seek leave to appear before the Family Court under section 89(1) (“review of welfare guardian?s or manager?s decisions”) and had received instructions to that effect in the event it becomes necessary to give effect to the intention of the Act for such orders to have the “least restrictive intervention? in the life of the person subject to the order…” (emphasis added). She concluded her response by advising that the father had been one of her referees for admission to the Bar.
The response dated 10 August 2010 was a detailed rebuttal of the Applicant?s complaint, to which he replied in equal detail on 28 August. There was no response from the Practitioner to this 28 August reply and it appears from the file that a copy may not have been forwarded to her. This was rectified when the Application for Review of the Standards Committee decision was processed by this Office.
Around late August 2010 there was also a letter received from the father?s former wife detailing background matters including the father?s physical health problems, the “scams” and the fact that she was owed “a considerable amount of money” by the father.
In its determination dated 24 November 2010, the Standards Committee effectively dismissed the Applicant?s complaint. It summarised the positions of each party, then expressed its decision as follows: “ The Committee noted that [the father] had...
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