MR GO v MS TQ
| Jurisdiction | New Zealand |
| Judgment Date | 12 January 2012 |
| Neutral Citation | [2012] NZLCRO 1 |
| Date | 12 January 2012 |
| Docket Number | LCRO 61/2011 |
| Court | Legal Complaints Review Officer |
Concerning an application for review pursuant to section193 of the Lawyers and Conveyancers Act 2006
and
Concerning a determination of the Waikato Bay of Plenty Standards Committee 2
[2012] NZLCRO 1
LCRO 61/2011
Application for review of determination of Standards Committee not to take further action on complaint of inappropriate client contact, and its finding that it did not have jurisdiction to investigate certain bills of cost — complaint laid under r11.2(b) Lawyers and Conveyancers Act 2006 (Lawyers: Conduct and Client Care) Rules 2008 (“CCC Rules”) (inappropriate client contact — mental and emotional state of client) — practitioner contacted applicant with regard to an insurance policy of his son, who died intestate, and offered to help with administration of estate — three months later applicant instructed respondent to handle administration — delay while confirmation sought as to whether son had fathered a child who would take under administration rules — applicant claimed respondent contacted him at a time when he was upset over his son's death, had charged excessive fees and had mishandled the administration application — whether practitioner had contacted client at a time when client's emotional state was such that he could not exercise reasonable judgment in engaging a lawyer; whether there was jurisdiction to investigate the bills of cost; and whether the fees charged were excessive.
Mr GO's son GP died in July 2007. At the time of his death GP was living in Australia.
His estate comprised substantial assets in New Zealand and Australia and included death benefits, insurance policies and bank accounts.
GP died apparently without a Will, although Mr GO formed the view that there may have been a Will or a reference to a Will in a bundle of correspondence that was held for GP by a person in Australia.
One of the assets of his estate was a ACR insurance policy. It seems that a ACR employee made contact with Ms TQ about the requirement for Letters of Administration to enable the policy to be redeemed. Mr GO says that Ms TQ telephoned him to offer her assistance, and while Ms GO cannot recall this phone call, she accepts that she may have been asked by the ACR employee to make contact with Mr GO to discuss the requirement for Letters of Administration.
On 30 October 2007, Mr GO and his wife met Ms TQ at her office to discuss what was required to progress administration of the estate. Ms TQ advises that she made a preliminary record of GP's assets and liabilities and also noted the possibility that GP was the father of a child.
The discussion between Ms TQ and the GOs included advice as to as to what Letters of Administration were and the requirement for Letters of Administration to be obtained to enable assets to be realised.
Whether or not GP had a child affected the distribution of his estate if no Will existed. Under the Administration Act 1969, any child would inherit all of GP's estate, whereas if there were no child, his parents would inherit his estate.
It was therefore important to ascertain whether or not there was a child and to be certain that GP had died intestate. Mr GO's instructions to Ms TQ were to ascertain whether there was a paternity order in existence, to communicate with ACR to ascertain their requirements, and to establish what was required to comply with section 6A of the Status of Children Act 1969 to enable Mr GO to obtain Letters of Administration.
Ms TQ reported to Mr GO by letter dated 11 February 2008 and advised Mr GO of the information she had obtained from the Department of Internal Affairs and confirmed that Letters of Administration could be applied for in New Zealand. She also advised Mr GO of the need to make full enquiries concerning the existence of the child and to ensure that the matter was clarified prior to any distributions of the Estate.
On Instructions Ms TQ proceeded to draft the Letters of Administration but Mr GO wanted to make sure that there was no Will in existence, and to verify whether or not there was in fact a child.
In November 2008 Mr TQ rang Ms GO to advise that he had been visited by the child's mother, and referred again to the missing bundle of correspondence in Australia, which Mr GO considered may have referred to a Will.
Mr and Mrs GO met with Ms TQ on 24 November 2008 at which time Mr GO provided a copy of a paternity order that had been made in relation to the child. Mr GO subsequently advised Ms TQ that he had ascertained that the order had been made on the basis of DNA testing which confirmed that GP was the father.
Ms TQ then proceeded to amend the draft Letters of Administration to take this information into account and in addition to comply with the new High Court rules insofar as they affected the Application.
The drafts were sent to Mr and Mrs GO on 23 January 2009 but Mr GO provided no further instructions. On 25 February 2009 Ms TQ sent a further account for $1,139.31 and this account remains unpaid. Previous accounts rendered in February and May 2008 had been paid.
In December 2009, a meeting took place between Mr and Mrs GO, Ms TQ, and her partner Mr TP. Following that meeting Mr TP wrote to Mr and Mrs GO with a summary of the options available to them. Whichever option they adopted, payment of Ms TQ last account was required.
In June 2010, Ms TQ received a letter from a solicitor who Mr GO had consulted expressing Mr GO's concerns that despite having received accounts totalling $3,713.06, administration of the Estate was no closer to being finalised. Ms TQ responded to that letter but no further correspondence was received from the solicitor.
Mr GO lodged his complaint with the Complaints Service of the New Zealand Law Society on 10 August 2010.
In his complaint, Mr GO expresses concerns with regard to the three invoices received from Ms TQ. He advises that he was in a vulnerable state of mind when he was contacted by Ms TQ not long after GP's death and accepted her offer of assistance.
He states that he believes now that it was not in his best interests to have instructed Ms TQ and considers that it would have been more advantageous to employ Australian solicitors to obtain Letters of Administration in Australia. He refers to the fact that it will be necessary to reseal Letters of Administration in Australia to enable the Australian assets to be dealt with.
Mr GO also complains about the length of time being taken to finalise matters but at the same time questions why Ms TQ prepared the draft Letters of Administration knowing that matters would take some time to finalise.
He also notes that there has been some doubling up in the accounts in that the second account is expressed to be for the period from 29 February 2008 to 26 May 2008 whilst the final account is from 29 January 2008 to 23 January 2009.
He notes the reference in the first account to “Letters of Administration” and states that he expected to have received these at the time of the first account. He also notes that he had been advised from an alternative source that he would not be a beneficiary of the Estate if GP had a child, and it was clearly not in his interests to expend money obtaining Letters of Administration if he was not to be a beneficiary.
He expresses his dissatisfaction with “the whole matter” and records his view that he considered the bills to be excessive.
The Standards Committee considered the matters raised by Mr GO and pursuant to section 138(2) of the Lawyers and Conveyancers Act 2006 determined to take no further action with regard to the complaints. That section provides the Committee with a discretion to take no further action if, having regard to all the circumstances of the case, the Committee considers that any further action is unnecessary or inappropriate.
The Committee's determination with regard to the bills of costs needs some further explanation and comment which is provided later in this decision.
With regard to the other matters raised by Mr GO, the Committee accepted Ms TQ responses and determined to take no further action.
A hearing took place in Hamilton on 7 December 2011 which was attended by Mr GO and a support person, and Ms TQ.
Mr GO says that Ms TQ contacted...
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