MR VN v MR AG

• Jurisdiction: New Zealand
• Judgment Date: 17 May 2013
• Neutral Citation: [2013] NZLCRO 20
• Date: 17 May 2013
• Docket Number: LCRO 224/2011
• 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 the Canterbury-Westland Standards Committee

BETWEEN

MR VN

Applicant

and

MR AG

Respondent

[2013] NZLCRO 20

LCRO 224/2011

Review of Standards Committee decision declining to uphold applicant's complaints of negligence, unprofessional behaviour and obstructing client's interest in failing to protect and advance that interest — applicant had sold land to local Council which later rezoned it and sold it at a profit — applicant wished to challenge sale transaction — alleged there had been a conflict of interest on the part of the solicitor who had acted for him on that sale as the same solicitor also acted for an individual (a property developer) who was one of the Councillors, and who had, on behalf of the Council, fronted the negotiations and sale involving the applicant's land — whether there was any professional failure on the part of the solicitor.

DECISION

Background

1 Mr VN (the Applicant) sought a review of a Standards Committee decision declining to uphold his complaints against law practitioner AG (the Practitioner). Mr AG was the third lawyer that the Applicant had complained about in relation to the same transaction. His prior complaints (against his original lawyer and the second lawyer who acted for him) were also not upheld by the New Zealand Law Society, decisions that were confirmed on review by this Office.

2 The background to the complaint is that the Applicant sold his rural property to the local District Council; the sale and purchase Agreement allowed the Applicant to remain on the land for a year for a peppercorn rental. On the expiry of that year the Applicant entered into a commercial rental arrangement with the Council with the lease being extended for a three year period. When he was asked to leave the property at the expiry of the lease, he objected, having meanwhile discovered that the Council had rezoned the land and sold part of it for a substantial profit.

3 He approached the Practitioner at the time that the Council sought to have him removed. One of the several matters he wanted the Practitioner to explore was whether there was a basis for challenging the original sale of the land to the Council. One of the grounds he wished to pursue was whether there had been a conflict of interest on the part of the solicitors who had acted for him on that sale. He alleged that there was a conflict on the basis that the same lawyer also acted for an individual (a property developer) who was one of the Councillors, and who had, on behalf of the Council, fronted the negotiations and sale involving the Applicant's land. The Applicant's view was that the lawyer had failed to protect his interests. He also alleged irregularities with the Council's rezoning processes.

4 Before approaching the Practitioner, the Applicant had explored these same issues with another lawyer. That lawyer had analysed the information, and obtained a report from a Resource Management Consultant about the Applicant's concerns. The lawyer advised the Applicant that there was no conflict of interest, and (relying on the Consultant's Report) also advised that there had been no irregularities in the rezoning process.

5 Dissatisfied with this, the Applicant then approached the Practitioner. By this time the Applicant was under the threat of forcible removal from the land. The Practitioner was asked to consider whether there was a basis for challenging the entire sale transaction. After consideration of all information (which included a copy of the original sale file) the Practitioner could find no basis for challenging the sale transaction, thus essentially confirming earlier advice that had been given to the Applicant by the previous lawyer.

6 After the Applicant terminated his relationship with the Practitioner, he filed a proceeding in the High Court where he was self represented. He was unsuccessful in that action, and a subsequent appeal also failed. The Applicant feels much aggrieved by what has happened. He has filed complaints against all lawyers involved at various times. This review decision deals with the complaints against the Practitioner.

Complaints

7 The Applicant's complaints against the Practitioner broadly covered the following areas:

• • negligence;

• • unprofessional behaviour; and

• • obstructing the client's interest in failing to protect and advance those interests.

8 When these complaints were notified to him, the Practitioner also discerned allegations of criminal behaviour and vitriol, and his response to the complaints covered those additional areas as well.

9 After considering the information the Standards Committee declined to uphold any of the complaints. The Applicant sought a review of the Committee's decision.

Review Application

10 The Applicant's review application was a lengthy and detailed explanation of what he perceived the Standards Committee's failures to be. His submissions were lengthy and detailed, much of it asserting a legal basis for his claim to have the land returned to him. In that context he contended, in broad terms, that the Standards Committee had failed to comprehend or recognise his legal rights to the land, or the lack of strategy on the part of the Practitioner to have achieved the outcomes he sought.

11 I will enlarge on this further so that the Applicant will know that I am aware of the grounds for his review application. It was apparent that the Applicant had approached the Practitioner with an expectation that the Practitioner would be able to achieve an outcome that would allow him to remain on the property, notwithstanding the expiration of the lease and the threat of forcible removal. This was a high priority for the Applicant who wrote, “[w]e were still in occupation of the property and stressed it was crucial we stay in occupation of this property as we had no other place to house our horses.” 1

12 The Applicant claimed the Committee failed to take into account the Practitioner's lack of strategy, and had used his position of dominance when giving him dogmatic advice. The Applicant restated his views about his legal position. He submitted that the Standards Committee failed to understand or accept the link between the sale of the property and the occupation Agreement. He restated the earlier grievance relating to the sale of land by the Council at a profit, and the circumstances under which they had originally sold it to the Council.

13 It was clear from the review application that the Applicant's view was that the Practitioner had given erroneous advice to them, a view based on the Applicant's own

perception of the legal position. He was critical of the Practitioner's failure to have acknowledged the existence of a conflict of interest on the part of the lawyers who handled the sale, because this contradicted the opinion of the Resource Management Consultant who had stated otherwise. He was critical of the Standards Committee for failing to have realised that the Practitioner's refusal to accept that there was any conflict was inconsistent with that Report. It is fair to say that a significant portion of his criticism of the Standards Committee related to its failure to notice the contradiction between the advice of the Practitioner on the one hand, and the opinion stated in the Report prepared by the Resource Management Consultant. He further alleged that the Practitioner had misrepresented that Report and that the Committee had failed to note the Practitioner's error in suggesting that the Report had no bearing on the situation

14 The Applicant further alleged that the Standards Committee had failed to understand the Council's statutory obligation in relation to the way it conducted its business (providing details as to how the Council had failed in this regard). He further noted that the Committee had not commented on the Practitioner's “excuse” 2 for not forwarding such evidence to him.

15 The Applicant explained that the reason he engaged the Practitioner was to prevent the Council from “illegally evicting” 3 them, but the Practitioner had taken no steps to do so, having advised them that they had no case.

16 Finally he referred to the Practitioner's fee exceeding the amount quoted.

17 The Practitioner was content to rely on submissions he had previously forwarded to the Standards Committee.

18 A review hearing took place on 24 August 2012 at which time I met with the Applicant and had extensive discussions with him about his complaints and the background to them.

Considerations

Applicable legal standard

19 The complaint concerns conduct that occurred in 2005/06. Where a review concerns conduct which occurred prior to 1 August 2008, the jurisdiction of a Standards Committee to consider it is determined by s 351 of the Lawyers and

Conveyancers Act 2006 (the Act). This provides that a complaint about conduct that occurred prior to 1 August 2008 may only be considered by the Committee if it could have led to disciplinary proceedings against the lawyer under the (former) Law Practitioners Act 1982. If the Committee concluded that the conduct does reach that threshold it may then turn to consider whether a disciplinary finding of unsatisfactory conduct should be made against the practitioner under's 12 of the Lawyers and Conveyancers Act

20 The s 12 definition of unsatisfactory conduct includes: 4

• (a) conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct that would be regarded by lawyers of good standing as...