Mr Larnark Mr Leichster Ms Quilt of Auckland v Mr Kirkby of Auckland
 NZLCRO 30
IN THE COURT OF APPEAL OF NEW ZEALAND
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
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.
Held: The first ground on which the applicants sought review was that the Standards Committee categorised the two assaults on the complainant as “fights”. Whilst this may have been an inappropriate description, how the incidents were referred to had no bearing on whether or not the barrister could be considered to be subject to disciplinary proceedings and was therefore of no relevance to this application.
The applicants sought to challenge the report of the costs assessor appointed by the Standards Committee to review the barrister's bills of costs on the basis the reviewer's conclusions were pre-determined and biased and employed double standards. The assessor would have had no previous involvement with the complaint, or the barrister whose accounts were being reviewed, and was considered by the Committee to have the requisite experience and ability to peer review the accounts. There was no evidence to show bias or predetermination on the part of the costs assessor nor was there anything in the assessor's report to show a breach by the barrister.
There was no evidence to show the barrister deliberately concealed or willfully failed to advise the applicants of the proposed judicial conference, which was only to deal with timetabling issues. Any failure of the barrister to advise the applicants of the proposed conference could not have been intended to cause harm in any substantial way, and was at most a technical breach by the barrister of the requirement of Chapter 7 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Disclosure and communication of information to clients).
Any responsibility for advice to the applicants on what basis the fees would be charged rested with the instructing solicitor. This was made clear in Rule 3.7 of the Client Care Rules, which provided that where a lawyer is instructed by another lawyer, the obligations created by Rule 3.4 (to provide a client in advance the basis on which fees would be charged) did not apply. The applicants had ample opportunity to request the instructing solicitor to make this enquiry of the barrister.
The complaint that the barrister had engaged in considerable unauthorised, unnecessary and unreasonable services were related to concerns the barrister had in making absolutely sure that the applicants were aware of his considerable concerns as to the likelihood of success of their claims, and was anxious to ensure that he did not give them false confidence as to the strength of their claim. The barrister was also keen to ensure that he did not expose his clients (or himself) to criticism by the Court, for pursuing an unmeritorious claim, which could have the result of indemnity costs orders against them.
A lawyer had the absolute right to pursue recovery of outstanding fees and there could be no suggestion that to do so would expose a lawyer to disciplinary action.
Decision of the Standards Committee confirmed.
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.
( NZLPDT, 15 August 1990; ). 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” ( 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.
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