KD v WW

 
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[2012] NZLCRO 29

LEGAL COMPLAINTS REVIEW OFFICER

judges:

LCRO Vaughan

LCRO 83/2011

Concerning an application for review pursuant to section193 of the Lawyers and Conveyancers Act 2006

Concerning a determination of Auckland Standards Committee 4

BETWEEN
KD
Applicant
and
WW
Respondent
Counsel:

In accordance with s.213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:

Ms KD as the Applicant

Mrs WW as the Respondent

Mr KE as representative for the Applicant The Auckland Standards Committee 4 The New Zealand Law Society

Secretary for Justice (Redacted)

Application for review of Standards Committee determination cancelling fees and imposing costs and fines on the law practitioner for unsatisfactory conduct under s12(b) Lawyers and Conveyancers Act 2006 (unsatisfactory/unprofessional conduct by lawyers) — respondent instructed practitioner to obtain custody of respondent's grandson who resided in England with his mother — practitioner represented herself she was experienced in family matters involving different jurisdictions — did not promptly instruct English solicitor as required — lawyer practitioner eventually approached and represented another interested party which led to a conflict of interest — documents were filed at last minute and some documents filed were irrelevant — practitioner difficult to contact — whether practitioner had failed to be proactive in her advice and steps she took by not instructing overseas solicitors in timely manner — whether practitioner had failed to advance her client's case with diligence.

The issues were: whether KD's failure to instruct English solicitors and give clear advice as to that necessity fell short of the standard of competence and diligence that was expected of a reasonable competent lawyer; and whether KD's lack of communication, incorrect preparation of documents and failure to advise her clients of developments meant her actions were below the standard of diligence required by s12(b) LCA.

Held: As WS, his mother and her partner were all living in England, it must have been obvious to KD that at some stage WV would require an English lawyer. It had become clear to KD that little progress had been made and the matter would need to be resolved in the courts. However, she then chose to make a further attempt at enlisting the aid of Children's Services, who regarded this as essentially a private matter.

It also seemed clear that WW and WV were expecting KD to instruct an English solicitor. When eventually she did so, she instructed one who was in Southern England, which was a considerable distance from Norfolk. A quick check would have revealed it was impractical to instruct this solicitor.

A client came to a lawyer for advice and direction. The advice therefore, had to be proactive and anticipate how matters could unfold and steps had to be taken to ameliorate potential consequences to a client. A proactive lawyer would have established contact with an English lawyer immediately if only to seek some guidance on how to proceed, but also to be in a position to have immediate representation if the need arose. KD however, did not instruct an English Solicitor immediately. Her conduct in endeavouring to instruct a lawyer was ineffectual. KD made no attempts to secure separate representation for WV even when it was known that the English Solicitor she had contacted represented other parties and this led to a conflict of interest

None of the steps taken by KD were the hallmark of a lawyer experienced in international issues involving children as she had represented to her clients. Her emails to her clients suggesting the appointment of English solicitors had not made it clear that this was a necessity. There was a lack of direction from KD. The service and advice provided to WW, WV and WU fell short of the standard of competence and diligence that was expected of a reasonably competent lawyer and constituted unsatisfactory conduct in terms of s12(b) LCA.

Further, the documents provided by KD did not advance WV's instructions and some of them were not completed in a timely manner. Her clients were charged for those documents, which were of little benefit to them. KD also did not inform WW, WV and WU as to all the developments in the matter when she had clear instructions to do so. She therefore failed to follow client instructions. While she was often in court and therefore unobtainable, timely action was required and if KD did not have the capacity to attend to these instructions, she should have declined to accept them in the first place.

The steps taken by KD were ineffective in advancing WV's instructions in any meaningful way and in the process. Relations with her client were somewhat neglected. The level of diligence applied by KD in attending to the matters was not of the standard required by s12(b) LCA.

Standards Committee decision confirmed.

DECISION
Background
1

In 2004, Mrs WW's son WV married WT. In September 2004, the couple went to live with WT's family in England. Their son, WS, was born on … 2004.

2

In November 2005, WV returned to New Zealand ahead of WT and WS on the understanding that they would follow as soon as WS's passport had been issued. Instead, shortly thereafter, WT advised WV that she had met and moved in with a person called WR, and did not intend to follow WV back to New Zealand.

3

Contact between WT, WS and WV over the next few years was made difficult by the fact that WT was not cooperative in maintaining contact, although she sought money from WV from time to time.

4

In November 2009 WV, his partner WU and Mrs WW consulted Ms KD to seek general advice about formalising access to WS with a view to ultimately seeking custody. Mrs WW lodged the sum of $5,000.00 with Ms KD to be used in payment of her costs.

5

Ms KD advised WW, WV and WU that she would not be able to devote much time to the matter prior to Christmas, but that she would read the file, and in the meantime they should continue with their efforts to obtain assistance from the English social services to make contact with WS.

6

Following a telephone conversation with the Assistant Team Manager of Children's Services at Norfolk County Council, WV received an email from her on 20 November 2009, in which she advised that she had made contact with WT who was not agreeable to providing WV with her contact details, or details of WS's school.

7

WV sent this email to Ms KD who responded on 23 November in the following way:–

“Thanks for that information [WV]. Now it looks like the only way forward would be through the Courts system. I will look into that.”

8

On 6 December, Ms KD made further contact with WV by email. She advised him that no options were open to him under the Hague Convention, and that there appeared to be no other way but to instruct a lawyer in the UK. The only reference to a lawyer in the UK that she had identified in the material supplied to her by WW, WV and WU was to the lawyer representing WR. She noted however that she was not sure if it was a good idea to use the same lawyer as in her words “it may become an issue of conflict of interests.”

9

Mrs WW then supplied Ms KD with the name of a lawyer who she had previously made contact with. Ms KD responded and indicated that she would help to set up the contact and gave a brief indication of her role. She finished the email in the following way:–

“I will make contact and brief the UK lawyer in the meantime.”

10

However, shortly thereafter, WV was contacted by WT. The tone of her communication appeared to be somewhat more conciliatory, but WV was wary and sought guidance from Ms KD on the content of his reply.

11

Ms KD responded and confirmed the content of the reply. She also advised WV to maintain whatever contact he could as it would support any proceedings that he brought in the Court subsequently. Given the fact that contact had been established with WT who was apparently then disposed to allow WV to have contact with WS, she asked whether he wanted her to hold off making contact with the UK solicitor.

12

On 22 December, she again sought instructions from WV, and rendered an invoice for her attendances to date.

13

It would seem that the next contact was by way of a telephone call from WU on 26 February 2010, in which WU expressed a desire to progress arrangements to have contact with WS. Ms KD recorded in her file note that she advised WU that to do this it would be necessary to contact a lawyer in the UK.

14

By that stage, regular contact with WR had been established. WR and WT had separated, and WS and their two boys were living with WR. WR was happy to facilitate contact between WV and WS but did not want to take any steps to seek custody of the children as he did not want to “rock the boat.”

15

On the morning of 30th March WU received a telephone call from WR, advising that WT had filed an application for custody of the children, and that he was required to be in Court the following morning. He had made contact with a solicitor prior to that, but had not met with her at that stage.

16

WU then emailed Ms KD to advise her of these developments and forwarded her a draft affidavit which she had prepared on WV's behalf. This provided a comprehensive picture of WV's relationship with WT and the events which had occurred. WW, WV and WU had decided that they should support WR in opposing WT's application, for the reason that WR was...

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