KD v WW
| Jurisdiction | New Zealand |
| Judge | LCRO Vaughan |
| Judgment Date | 30 March 2012 |
| Neutral Citation | [2012] NZLCRO 29 |
| Docket Number | LCRO 83/2011 |
| Court | Legal Complaints Review Officer |
| Date | 30 March 2012 |
Concerning an application for review pursuant to section193 of the Lawyers and Conveyancers Act 2006
Concerning a determination of Auckland Standards Committee 4
[2012] NZLCRO 29
LCRO Vaughan
LCRO 83/2011
LEGAL COMPLAINTS REVIEW OFFICER
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.
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)
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.
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.
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.
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.
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.
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.
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.”
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.”
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.”
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.
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.
On 22 December, she again sought instructions from WV, and rendered an invoice for her attendances to date.
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.
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.”
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.
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 amenable to facilitating access for WV while WS was in his care.
That night, Ms KD made telephone contact with WR's lawyer (Ms WQ of the firm ADP) and the following day she reviewed the draft affidavit and sent it by email to Ms WQ.
On 6 April, Ms WQ reported that WV had been joined by consent as a party to the proceedings. To facilitate matters, she agreed to accept service of documents on behalf of WV.
Subsequently, on 14 April 2010, Ms WQ reported that documents had been served by WT's lawyers. She forwarded to Ms KD a copy of WT's application, the order, and the undertaking that had been provided by WT to the Court on 31 March. Ms WQ pointed out to Ms KD that statements from the parties were to be filed in Court by 21 April.
Ms KD sent this email to WV's email address on 15 April. For whatever reason, this was not seen by WU or WV until Tuesday 20 April. Arrangements were made for WV to attend Ms KD's office at 4:30 p.m. that day, and from then until about 9:30 p.m., Ms KD worked on the draft affidavit while WV waited. The document was finally sworn by him in front of Ms KD and sent by email to Ms WQ at 9:31 p.m.
In conjunction with this, Ms KD had downloaded and completed a form from the internet which was an Application for Contact under the Children Act 1999. This application was presumably sent to Ms WQ under cover of the same email.
Mrs WW, WU and WV, were by that stage extremely dissatisfied with Ms KD's advice and service and instructed an alternative solicitor.
In the course of her instructions, Ms KD had rendered three bills of costs:
"22 December 2009 for $1,012.50
"13 April 2010 for $1,329.38
"28 April 2010 for $1,350.00
Payment was made by way of deduction from the funds in Ms KD's trust account.
Mrs WW and her husband had provided the funds for WV to instruct Ms KD and it was Mrs WW who lodged the complaint with the Complaints Service on behalf of herself, her husband and WV. She outlined the events that had unfolded. Her complaint in general was that Ms KD had not provided timely or appropriate advice. In the first instance, the affidavit required for the Court appearance on 1 April, was dealt with at the last minute and was not an appropriate document for the English Courts. More importantly, it was doubtful if it was of any benefit in furthering WV's objectives to obtain access to his son WS. In addition, WW, WV and WU found it difficult to communicate with Ms KD as she was often unavailable and had issued instructions that communication was to be only by way of email. WV was a builder and did not have daily access to a computer, as he was always on site. He was however, always able to be contacted by telephone but Ms KD did not make contact with him at any time in this manner.
The Standards Committee expressed Mrs WW's complaints as being;
"Overcharging;
"Incompetence. Failure to handle the case in a competent manner added to costs;
"Failure to follow some of the client's instructions;
"Failure to provide the client with important information ; and
"Failure to act promptly at crucial times during the case.
The Standards Committee issued its determination on 3 March 2011. In the section headed “discussion” the Committee had this to say:
“The Committee considered all of the material before it. The Committee was of the view that a lawyer with experience in this area of family law would have instructed a lawyer in the UK as soon as practicable. The Committee noted that Ms [KD] failed to take this necessary step despite informing the client that she had experience in this area of family law. The Committee noted that Ms [KD] had failed to lodge documents in time, had failed to progress matters in a timely...
To continue reading
Request your trial