MR OT v MR PI
| Jurisdiction | New Zealand |
| Judgment Date | 20 August 2012 |
| Neutral Citation | [2012] NZLCRO 72 |
| Date | 20 August 2012 |
| Docket Number | LCRO 101/2011 |
| Court | Legal Complaints Review Officer |
CONCERNING an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
And
CONCERNING a determination of Auckland Standards Committee 4
[2012] NZLCRO 72
LCRO 101/2011
Review of Standards Committee determination that no further action be taken on a complaint that the practitioner had misled the Standards Committee in his responses to an earlier complaint — applicant had previously laid a complaint that the respondent practitioner had issued an opinion which the applicant asserted was inaccurate as to facts — opinion stated to bebased on certain factual assumptions — whether practitioner had a duty to verify facts before issuing an opinion — whether there was evidence practitioner had misled the Standards Committee in his responses to the earlier complaint.
Mr OT for Appellant
Mr PI for Respondent
Auckland Standards Committee 4
The New Zealand Law Society
The names and indentifying details of the parties in this decision have been changed.
DECISION
Mr OT complained to the New Zealand Law Society in April 2009 about an opinion provided by Mr PI to an English law firm (BAJ). BAJ had sought the opinion from Mr PI in connection with proceedings which Mr OT had issued against Mr OU (his half brother for whom BAJ acted) for the return of funds held by Mr OU in a Swiss bank account.
The opinion was provided to support Mr OU'defence to the claim by Mr OT that he should not release the funds which he had received following liquidation of a company (SPL) until he was sure that the funds were not “tainted” with any tax fraud.
In his opinion, Mr PI concluded that Mr OT, a director and shareholder of the company, may be liable for tax offences committed by the company. His opinion was specifically expressed to be based on certain assumptions of fact as advised to him by BAJ.
Mr OT asserts that these facts were not correct and he contended that Mr PI had a duty to verify the facts before issuing his opinion. In particular, he contended that Mr PI had an obligation to verify the shareholding in the company as the material supplied to him by BAJ indicated some discrepancies in that regard.
The Standards Committee resolved to take no further action in respect of Mr OT'complaint on the grounds that Mr PI had acted in good faith and provided an opinion based on information presented to him. It also noted that at the time of the complaint Mr PI had withdrawn his opinion.
Mr OT sought a review of that decision by this Office. 1 The LCRO agreed with the Standards Committee that there had not been any wrong doing by Mr PI.
On 20 February 2011, Mr OT wrote to the New Zealand Law Society Complaints Service seeking that the Standards Committee review its September 2009 determination on the grounds that “new evidence [had become available] that BAK [Mr PI] did not verify/test BAJ brief” and had “ignored [the] true facts as well as misrepresenting to the [Standards Committee] that the legal opinion had been “unqualifiedly withdrawn”.
The Standards Committee issued its determination on 13 April 2011 and recorded its findings in the following way: -
[17] The Committee noted this complaint had been dealt with previously and had also been the subject of a review to the LCRO. The issue for consideration for the Committee was whether there was any evidence to support the allegation that Mr PI had misled the Standards Committee or whether the advice provided relating to the withdrawal of the opinion was inaccurate in any way.
[18] In relation to the allegation that Mr PI had misled the Committee, the Committee could find no evidence in the material provided by Mr OT to support this allegation. In the Committee'view, BAK'opinion was based on documents provide [ sic] by the English solicitors who instructed the firm. The “true facts” sent through by Mr OT did not, in the Committee'view, alter the fact that BAK provided their opinion based on information provided to them and that they were entitled to assume that information as correct. The Committee further noted that the alleged breach of Rule 8.04 had been dealt with by the LCRO and that it was unnecessary to canvas this issue of complaint again.
[19] In relation to the second issue of complaint, being the allegation that Mr PI had misled the Committee by stating that the legal opinion had been withdrawn, the Committee noted that at the time of Mr PI'response to the initial complaint,
the legal opinion had been withdrawn. This was because BAK'fees had not been paid. The “new evidence” email provided by Mr OT dated 21 December 2010 was not evidence that Mr PI had misled the Committee. All that email did was confirm that the withdrawal no longer applied as their fees had now been paid. In the Committee'view, Mr PI had not misled the Committee.
Mr OT has applied for a review of that determination.
The Standards Committee treated the correspondence from Mr OT as a request for the Standards Committee to review its earlier determination. It did not refer the correspondence to Mr PI for a response and the matter was put before the Standards Committee for its determination. A copy of that determination was provided to Mr PI.
When advised of this application for review, Mr PI responded by letter dated 24 May 2011 in which he stated:–
Having considered the application, I confirm that I am content to rely on the material I have already submitted in this matter.
However, should the Complaints Committee require my response to any specific issue now raised by Mr OT, I would be happy to assist.
On 7 September 2011, this Office sought consent from the parties for the review to be completed on the basis of the material provided. Mr PI provided his consent.
Before responding to the request, Mr OT sought confirmation of what had been provided to this Office by Mr PI and referred to material which had been provided in relation to the first review.
Nothing had...
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