JV v QG

 
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[2012] NZLCRO 80

LEGAL COMPLAINTS REVIEW OFFICER

Judges:

LCRO Vaughan

LCRO 65/2011

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

and

Concerning a determination of Auckland Standards Committee

BETWEEN
JV
Applicant
and
QG
Respondent

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

Application for review of Standards Committee decision to take no further action against principal of law firm for failing to properly supervise his employee solicitor — applicant had written five times to practitioner in respect of solicitor's failure to progress applicant's case — principal did not make enquiries or respond even when applicant terminated instruction and requested return of documentation — principal claimed not to have necessary expertise in employeed solicitor's area of practice — whether there was a breach of r11.3 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (supervision and management) — whether the practitioner was obliged to promptly respond to the applicant's communications.

The issues were: whether QG as the principal had adequately supervised QF or whether there was a breach of r11.3 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (“CCC Rules”) (supervision and management); whether there was an undertaking; whether QG was obliged to promptly respond to JV's letters; and whether QG's conduct was unsatisfactory.

Held: At the time of the conduct complained of, QF was an employed solicitor with the firm. As such, QG had a duty to supervise QF's conduct in accordance with r11.3 CCC Rules. This required that a lawyer in practice on his or her own account had to ensure that the conduct of the practice (including separate places of business) and the conduct of employees was at all times competently supervised and managed by a lawyer who was qualified to practice on his or her own account.

Although there was difficulty in supervising a solicitor whose field of work was one in which the principal was unskilled, in this case, the supervision required was only minimal and administrative in nature. All that was required of QG was to ensure that QF did respond to JV's request. It did not amount to supervision which required any specific knowledge on a particular area of law.

JV considered QG's assurance that QF would respond to constitute an undertaking. However, this was not an undertaking in the formal sense to which specific obligations could be attached.

QG replied to only one of JV's letters and thereafter merely handed the correspondence to QF to address. Rule 7.2 CCC Rules (lawyer to promptly answer requests for information or other enquiries from the client) required QG to promptly answer requests for information from JV. It was not enough for QG to just hand the letters to QF to respond to without ensuring that the letters were indeed answered. In addition, the general rules of conduct as to appropriate standards of professionalism demanded that correspondence be replied to.

There was a lack of very basic supervision by QG in that he merely deferred to QF and left to him to respond to or not and did not take responsibility to check that QF had indeed replied. QG adopted a somewhat disingenuous approach that if there was no file then there was nothing to supervise. He ought to have enquired as to what instructions QF had received, why there was no file and what steps QF had taken to further those instructions. Even when JV terminated his instructions and requested the return of his materials, QG took no steps to ensure that occurred.

Determination of the Standards Committee reversed. QG's conduct constituted unsatisfactory conduct. QG reprimanded.

Introduction
1

Mr JV seeks a review of a determination by Auckland Standards Committee to take no further action in respect of a complaint by Mr JV against Mr QG that he failed to properly supervise his employee Mr QF.

Background
2

In 2009 Mr QF was employed by the firm of AER of which Mr QG was the principal.

3

Mr QF accepted instructions from Mr JV to act in connection with an application pursuant to the Costs in Criminal Cases Act 1967.

4

Mr QF did not progress matters and that has been the subject of a separate complaint and review.

5

On 16 March 2010, Mr JV wrote to Mr QG. He advised Mr QG that he had written to Mr QF on four occasions (4 August, 4 September, 17 November 2009 and 24 February 2010) and had telephoned on three occasions (2 October, 16 November and 15 December 2009) to ascertain what progress Mr QF was making in connection with his instructions. He advised Mr QG that he had received no response from Mr QF to these communications and sought assistance from Mr QG in eliciting a response from Mr QF.

6

Mr QG responded to Mr JV on 22 March 2010 in the following way:–

I acknowledge receipt of your letter of the 16th March 2010 which I have discussed with Mr [QF]. He will be writing to you in the very near future. In the meantime please complete and return the enclosed application for legal aid.

7

Mr JV did not receive any communication from Mr QF. He wrote to Mr QG on 27 April 2010 to advise that he had not received any communication from Mr QF. He did not receive any response from Mr QG.

8

He wrote on two further occasions on 4 May and 25 May 2010 to Mr QG to advise again that he had received no response from Mr QF. No response was forthcoming from Mr QG.

9

Finally, Mr JV wrote to Mr QG on 19 June 2010 as follows:–

Further to numerous letters penned by myself to your office and to Mr [QF] in which I have requested correspondence to advise of your intentions to proceed with the above matter, there has been no response.

I can only conclude from your lack of response that you have no interest in proceeding.

That being so, I request that you kindly return my documentation to me.

10

Again, Mr QG did not respond to or acknowledge that letter.

The complaint and the Standards Committee determination
11

On 5 July 2010, Mr JV lodged a complaint with the New Zealand Law Society Complaints Service. He complained that Mr QG had failed to meet his obligations to properly supervise Mr QF. He also complained that Mr QG had failed to honour an undertaking.

12

Mr QG responded to the Complaints Service in the following way:–

I acknowledge receipt of your letter of the 18th July, 2010. I do not know the complainant nor have I met him.

I acknowledge that I received a letter from Mr. [JV] dated the 16th March 2010 and that I did reply to it on the 22nd March 2010 having first discussed it with Mr [QF] who assured that [ sic] he had the matter in hand. I do not engage in matters involving Court proceedings and therefore I was unable to discuss the matter with any degree of understanding. I am aware that the communication was made more difficult by the fact that the complainant was moved from the prison at Huntly where he was available to be called upon by Mr. [QF] to a prison in Wanganui where he had become no longer easily accessible as it is a long journey to Wanganui.

I subsequently handed other correspondence to Mr. [QF] and being aware of the extreme communication difficulty I left all matters to him.

13

In response to a Notice of Hearing from the Standards Committee, Mr QG made further comments by way of a letter dated 7 October 2010, which is again reproduced in full:–

I acknowledge receipt of your letter of the 23rd September 2010. I reply as follows:–

  • 1. Mr. [JV] was unknown to me until he wrote to me earlier this year.

  • 2. I did discuss the letter with Mr. [QF] on more than one occasion.

  • 3. I am not aware whether my firm has been instructed by Mr. [JV]. I am aware that Mr. [QF] did have a discussion with Mr. [JV] in prison about the possibility of Mr. [QF] assisting Mr [JV].

  • 4. I do not know the nature of the assistance that was sought by Mr. [JV] except that it was in the field of criminal law, a field in which I have little experience or knowledge.

  • 5. Each partner in my firm has his or her own field of expertise and in which we engage. We do discuss certain matters amongst ourselves but we do not seek to interfere or intervene in each others separate areas of practice. I believe that this is the case in most in most legal partnerships.

  • 6. I am not aware of any current file or matter of Mr. [JV] in which my firm is engaged that requires any supervision.

  • 7. That I consider my partners most competent in their own fields of law in which they engage and in which I do not possess the knowledge or competence to intervene or supervise. We are all available to each other to discuss any matters should the occasion arise.

  • 8. I am not aware of any obligation to supervise my partners nor am I responsible for their failings other than in any civil liability that may arise.

14

Following consideration of the matter, the Standards Committee determined to take no further action in respect of the complaint. It recorded its discussion of the matter in this way:–

10
    The Committee considered Mr [QG's] submissions and took into...

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