Mr Larnark Mr Leichster Ms Quilt of Auckland v Mr Kirkby of Auckland
| Jurisdiction | New Zealand |
| Judgment Date | 01 October 2010 |
| Neutral Citation | [2010] NZLCRO 30 |
| Date | 01 October 2010 |
| Docket Number | LCRO 44/2010 |
| Court | Legal Complaints Review Officer |
Concerning An application for review pursuant to Section 193 of the Lawyers and Conveyancers Act 2006
a determination of the Auckland Standards Committee No. 3
[2010] NZLCRO 30
LCRO 44/2010
IN THE COURT OF APPEAL OF NEW ZEALAND
Application seeking review of a Standards Committee decision which resolved to take no further action against a barrister in relation to the applicants' complaints which included delays in providing advice and filing proceedings; failure to follow instructions; excessive and unnecessary work carried out with repetitive correspondence resulting in charges to the complainants in excess of what they considered appropriate; failure to advise of a scheduled date for a judicial conference; failure to advise the applicants of charge out rates; and instigating recovery action for the barrister's fees — whether there had been a breach of professional standards by the barrister.
The names and identifying details of the parties in this decision have been changed.
This application arises from circumstances where one of the Applicants, namely Mr Larnark, a pupil at an Auckland School was assaulted by another pupil at the school. The Applicants instructed Mr Caerphilly to act on their behalf in respect of a potential action against various parties. Mr Caerphilly instructed the Practitioner, a Barrister, to pursue the claim on behalf of the Applicants. At all relevant times, Mr Caerphilly remained the instructing solicitor.
Proceedings were issued by the Practitioner on behalf of the Applicants on 1 May 2008. Subsequently, it was decided that an amended Statement of Claim was required and this was prepared and filed on 10 November 2008. In addition, the Practitioner formed the view at a later date, that the proceedings should be transferred to the High Court due to the fact that the Applicants' claim included matters relating to the Bill of Rights and breaches of the rules of natural justice.
The Practitioner's instructions were terminated on 19 December 2008.
The details of the Applicants' complaints to the New Zealand Law Society are set out in a letter to the Society dated 14 April 2009. That letter sets out 7 matters concerning the performance of the Practitioner with which the Applicants were dissatisfied, and these were summarised in the Society's letter to the Practitioner on 24 April 2009. It is not necessary for me to repeat these in detail as they are fully recorded in the correspondence referred to. Briefly however, the Applicants' complaints included:
Delays in providing advice and filing proceedings;
Failure to follow instructions;
Excessive and unnecessary work carried out with repetitive correspondence resulting in charges to the complainants in excess of what they considered appropriate;
Failure to advise of a scheduled date for a judicial conference;
Failure to advise the Applicants of charge out rates;
Instigating recovery action for the Practioner's fees.
The rules which apply to the conduct of the Practitioner prior to 1 August 2008 are those which applied under the Law Practitioners Act 1982 (now repealed). By virtue of section 351 (1) of the Lawyers and Conveyancers Act 2006 such complaints may be considered by a Standards Committee only where the conduct complained of could have led to proceedings of a disciplinary nature against the Practitioner under the former Law Practitioners Act.
The applicable standards are those contained in the Law Practitioners Act 1982 and the Rules of Professional Conduct for Barristers and Solicitors, both of which have since been replaced. The pre 1 August 2008 standards are found in ss 106 and 112 of the Law Practitioners Act 1982. The threshold for disciplinary intervention under the Law Practitioners Act 1982 was relatively high and may include findings of misconduct or conduct unbecoming. Misconduct was generally considered to be conduct:
of sufficient gravity to be termed ‘reprehensible’ (or ‘inexcusable’, ‘disgraceful’ or ‘deplorable’ or ‘dishonourable’) or if the default can be said to arise from negligence such negligence must be either reprehensible or be of such a degree or so frequent as to reflect on his fitness to practise.
( Atkinson v Auckland District Law Society NZLPDT, 15 August 1990; Complaints Committee No 1 of the Auckland District Law Society v C [2008] 3 NZLR 105). Conduct unbecoming could relate to conduct both in the capacity as a lawyer, and also as a private citizen. The test will be whether the conduct is acceptable according to the standards of “competent, ethical, and responsible Practitioners” ( B v Medical Council [2005] 3 NZLR 810 per Elias J at p 811). For negligence to amount to a professional breach the standard found in s 106 and 112 of the Law Practitioners Act 1982 must be breached. That standard is that:
the negligence or incompetence has been of such a degree or so frequent as to reflect on his fitness to practise as a barrister or solicitor or as to tend to bring the profession into disrepute.
Although the Committee may not have been as fulsome as this in recording matters to be considered, these are the standards against which the Committee was required to measure the Practitioner's performance.
The Standards Committee resolved pursuant to section 138(2) of the Lawyers and Conveyancers Act 2006, to take no further action in respect of the Applicants' complaints.
The Applicants have applied for a review of the Committee's decision and have set out their reasons in paragraphs 7 to 13A (inclusive) of their letter dated 25 March 2010 accompanying the Application for review.
All of the actions or omissions of the Practitioner complained about fall into the period prior to the commencement of the Lawyers and Conveyancers Act 2006 (1 August 2008) except for the final billings and the complaint relating to the failure to advise of the date set for the judicial conference.
The first ground on which the Applicants seek review is that the Standards Committee categorised the two assaults on the Complainant as “fights”. Whilst this may have been an inappropriate description, how the incidents are referred to has no bearing on whether or not the Practitioner could be considered to be subject to disciplinary proceedings and is therefore of no relevance to this Application.
The next matter the Applicants wish to have considered by the LCRO, relates to the report of the costs assessor (Mr Tain) appointed by the Committee to review the Practitioner's bills of costs. The Applicants consider that Mr Tain's conclusions were pre-determined and biased and employed double standards.
Complaints concerning costs are referred by Standards Committees to assessors for independent review. The Law Practitioners' Act 1982 provided a standalone process for lawyers' accounts to be reviewed by costs revisers. However, under the 2006 Act, complaints concerning lawyers' charges are treated as disciplinary matters. The Complaints Service of the New Zealand Law Society has compiled a list of persons willing to act as costs assessors to review and comment on lawyers' accounts, in much the same way as a costs reviser did previously. However, the ultimate decision as to whether bills of costs rendered by a lawyer are such that the lawyer is to be the subject of disciplinary charges now rests with the Standard Committee.
Mr Tain was a costs assessor appointed by the New Zealand Law Society. It can safely be assumed that the assessor will have had no previous involvement with the complaint, or the Practitioner whose accounts are being reviewed, and will have been considered by the Committee to have the requisite experience and ability to peer review the accounts. Consequently, it is difficult to imagine how the assessor could have been biased, or had the opportunity to pre-determine his views before...
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