MR WC v MR AU

 
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[2013] NZLCRO 28

LCRO 218/2012

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
Counsel:

Mr WC as the Applicant

Mr AU as the Respondent

The Auckland Standards Committee 1

The New Zealand Law Society

The names and identifying details of the parties in this decision have been changed

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).

The issues were: whether WC had acted inappropriately in dealing with AV while she was represented by AU; and, whether the conduct (either in its totality or in part) was “conduct that would be regarded by lawyers of good standing as being unacceptable” in terms of s12(b) LCA (conduct unbecoming or unprofessional conduct).

Held:WC had clearly undertaken legal work for AV and he had not had an instructing solicitor when he undertook that work. Rule 14.4 CCC Rules provided that a barrister sole could not accept instructions to act for another person other than from a person who held a practising certificate as a barrister and solicitor.

The fact that WC had acted without a fee was irrelevant. While there was an exception to r14.6 CCC Rules where the lawyer was “providing assistance to a legal advice service operating on a non — profit basis or acting pro bono on work referred by such a service”, that did not apply here as no intervening legal advice service existed. WC had acted for AV when he submitted the e-bail application and had breached r14.4. WC's conduct therefore constituted unsatisfactory conduct, as defined in s12(c) LCA.

Rule 10.2 CCC Rules (communicating with another lawyer's client) was intended to prevent a lawyer acting on one side of a matter from contacting the opposing client directly and thereby circumventing the lawyer advising that client (and the protections that go with that advice). WC had not breached that rule by communicating directly with AV as he had not acted in the same matter as AU.

There would be instances where it was inappropriate for a lawyer to contact a person who was represented where the purpose of that communication was to solicit business. Those circumstances were set out in r11.2 CCC Rules (direct solicitation) which provided that a lawyer must not directly contact a prospective client in a way that was inappropriate or the lawyer wasaware that the prospective client did not wish to be contacted. There was no evidence that this rule had breached by WC in his dealings with AV.

The Standards Committee had not referred to any particular rule or standard in finding that it had been inappropriate for WC to have acted when he had not been assigned as counsel on a criminal legal aid basis. Section 12(b) LCA was the proper standard to apply and the analysis of the Standards Committee was consistent with a finding that the conduct of WC was “conduct that would be regarded by lawyers of good standing as being unacceptable”.

While WC may have been motivated in his actions to ensure AV received appropriate legal assistance in a timely way, it was not clear that WC's views had been reasonably held. It was difficult to see how there was a great deal of urgency in respect of the bail application. There was no evidence WC had made any attempt to contact AU to discuss the situation. While it was not the role of the Standards Committee to enforce standards of mere etiquette, it would seem usual to raise these matters with the other counsel as a matter of courtesy and to ensure that the interests of the client were properly protected and there was no duplication or confusion.

There was no property in a client and a client may change lawyers should they choose to do so. It was therefore not inappropriate of itself for WC when asked, to provide assistance in respect of a possible reassignment of counsel appointed on a legal aid grant. It had been unreasonable for WC to have submitted the e-bail application, rather than liaise with AU and wait for the outcome of AV's application for the reassignment of counsel.

The Standards Committee had been correct to conclude that the conduct was “conduct that would be regarded by lawyersof good standing as being unacceptable” and therefore to make a finding of unsatisfactory conduct and to decide notto exercise its discretion to take no further action on the complaint under s138 LCA.

Pursuant to s211(1)(a) LCA (powers exercisable on review — confirm, modify, or reverse any decision of a Standards Committee), the determination of the Standards Committee was confirmed.

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...

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