MR WC v MR AU

• Jurisdiction: New Zealand
• Judgment Date: 06 June 2013
• Neutral Citation: [2013] NZLCRO 28
• Date: 06 June 2013
• Docket Number: LCRO 218/2012
• 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

BETWEEN

MR WC

Applicant

and

MR AU

Respondent

[2013] NZLCRO 28

LCRO 218/2012

Application for review of a decision of the Auckland Standards Committee which found the applicant had breached r14.6 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (intervention rule) and that it constituted unsatisfactory conduct under s12(c) Lawyers and Conveyancers Act 2006 (“LCA”) (unsatisfactory conduct)— respondentwas a barrister who had been instructed by the then Legal Services Agency to act for a client — client then unsuccessfully sought to have the applicant appointed as her counsel — applicant then acted pro bono for the client without instructions from a solicitor when he knew the client's request for reassignment of counsel had been denied — whether the applicant had acted inappropriately in dealing with client — whether the conduct was “conduct that would be regarded by lawyers of good standing as being unacceptable” in terms of s12(b) LCA (conduct unbecoming orunprofessional conduct).

Counsel:

Mr WC as the Applicant

Mr AU as the Respondent

The Auckland Standards Committee 1

The New Zealand Law Society

Introduction

1 Mr WC, a barrister, seeks a review of a decision of the Auckland Standards Committee that found he had acted inappropriately in dealing with Mrs AV, a client of Mr AU's. Mr AU is also a barrister, and was also the original complainant to the Standards Committee. Mrs AV was a client who was funded through the Legal Aid system.

Background

2 On 18 June 2010, Mr AU was instructed by the then Legal Services Agency (LSA) to act for Mrs AV, who was remanded in custody at the Auckland Women's Prison. In March 2011, Mrs AV was granted bail. In August 2011 the bail conditions were varied to allow her to reside at a different address.

3 On or about 12 October 2011, Mrs AV was arrested and charged with further offences. Mrs AV was committed for trial in the High Court, due to commence in April 2012. On 18 October 2011 Mr AU was instructed by the Legal Aid Ministry of Justice (LAMJ) to also act for Mrs AV in relation to the fresh charges.

4 In October 2011 Mr WC spoke by telephone with Mrs AV (Mr AU says there was a meeting but this is not material) whilst she was in custody at the Women's Prison. It appears Mrs AV was referred to Mr WC by another prisoner and she therefore contacted him. In the course of that conversation Mr WC says Mrs AV raised concerns about Mr AU. As a consequence of that discussion Mrs AV sought from the LAMJ that Mr WC be appointed in Mr AU-s stead. The making of that application was facilitated by Mr WC who forwarded the application to LAMJ on 3 November 2011.

5 Mr AU then received a letter from LAMJ, advising him that in relation to the instructions of June 2010, Mrs AV had requested a change of counsel “due to personal conflict”. 1 Mr AU replied to that letter on 21 November 2011 and was subsequently advised by the LAMJ, on 28 November 2011, that Mrs AV-s application to have counsel reassigned was refused.

6 Mr WC also says that in the course of his dealings with Mrs AV she raised the prospect of obtaining bail. Mr WC agreed to file a bail application for Mrs AV. In particular Mr WC says that on 4 November 2011, Mrs AV rang him in a “very distressed state” 2 because Mr AU had failed to attend court and she wanted to be granted bail so that she could spend Christmas with her son. Mr WC agreed to file her application on a pro bono basis “[b]ased entirely on Mrs [AV-s] level of desperation”. 3 It is also clear that Mr WC expected to be assigned by LAMJ to act for Mrs AV (although this in fact did not eventuate).

7 On or about 24 November 2011, Mr AU-s office was advised by the High Court at Whangarei that an application for bail with electronic monitoring had been made. Mr AU subsequently received a copy of the application, which showed that it had been made by Mr WC who was holding himself out as the lawyer for Mrs AV. Mr AU also notes that he followed up with Mrs AV as to whether she wished to instruct him to pursue that application, those instructions werenot forthcoming.

8 Mr AU complained to the Lawyers Complaints Service that:

• a. Mr WC was not assigned counsel on a criminal legal aid basis when he filed the bail application for Mrs AV;

• b. Mr WC appeared not to have any instructions from an instructing solicitor; and

• c. Mr WC was purporting to act for Mrs AV when he knew, or ought to have known, that she was represented by Mr AU.

9 The complaint is in essence that Mr WC acted for Mrs AV when she was represented by other counsel and without an instructing solicitor.

10 It is pertinent to note that Mrs AV has (understandably) not provided any information in respect of her instructions to Mr WC or to Mr AU.

Determination by the Standards Committee

11 The Standards Committee concluded that Mr WC was at all times aware that Mrs AV was represented by Mr AU, but nonetheless decided to submit an e-bail application on her behalf. As there was no certainty at that point that he would be reassigned as counsel, the Committee concluded that it was unsatisfactory conduct for Mr WC to act when he knew that Mr AU was representing Mrs AV on a Legal Aid basis.

12 The Committee further decided that Mr WC was in breach of the intervention rule, provided in particular in Rule 14.6, 4 and that this constituted unsatisfactory conduct as defined in s12(c) of the Lawyers and Conveyancers Act 2006 (the Act).

13 Finally, the Committee decided that Mr WC had not inappropriately communicated with Mrs AV and there was no breach of Rule 10.2. 5 This conclusion was reached because Mr WC was not “acting” in the matter when he communicated with Mrs AV, despite him realising that she was represented by Mr AU.

14 Mr WC was reprimanded pursuant to s 156(1)(b) of the Act and ordered to pay

$900 in costs.

15 The Committee decided that publication was not necessary or desirable in the public interest.

Review Application

16 Mr WC seeks a review of that decision on the basis that at all times he was of the view that Mrs AV-s application for him to be reassigned as counsel would be

successful and he is somewhat perplexed as to why it was not. Furthermore, Mr WC believed that if he had not filed the e-bail application, Mrs AV would have been significantly disadvantaged by the delay in having the application heard and therefore it was proper for him to take those steps to preserve Mrs AV-s position

17 Mr WC also notes in his application for review that he considers that he acted appropriately in rendering assistance to Mrs AV in circumstances where it is conceivable that prejudice would result if he did not take steps on her behalf. He notes that in his view his actions were consistent with an overriding obligation to assist people who request assistance.

18 Mr WC does not consider the Committee-s finding of unsatisfactory conduct to be correct and seeks that it to be reversed, along with the Order for costs of $900 and the reprimanding pursuant to s156(1)(b) of the Act.

Analysis and Review

19 At the heart of this matter is the question of whether Mr WC acted inappropriately in dealing with Mrs AV including seeking to be assigned as her counsel and in making a bail application on her behalf while she was represented by Mr AU. While this can be considered in terms of whether a particular Rule has been breached, there is also the residual question of whether the conduct (either in its totality or part of it) was “conduct that would be regarded by lawyers of good standing as being unacceptable” in terms of s 12(b) of the Act. I will consider the question of whether there has been a breach of Rule 14.4 before returning to that...