MS VR v MS AL

• Jurisdiction: New Zealand
• Judgment Date: 31 May 2013
• Neutral Citation: [2013] NZLCRO 23
• Date: 31 May 2013
• Docket Number: CIV-2014-404-1219
• 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

MS VR

Applicant

and

MS AL

Respondent

[2013] NZLCRO 23

CIV-2014-404-1219

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application for review of a Standards Committee decision to take no further action in respect of a complaint against a law practitioner instructed in relation to an agreement under s21 Property (Relationships) Act 1976 (Spouses or partners may contract out of the Act) — client instructed practitioner that she was willing to sign an agreement as proposed to by her husband — practitioner advised client against this and wished to meet with her to ensure that she understood her legal position — practitioner emphasised obligations on her with regard to certification of agreement — whether the practitioner was obliged to follow the client's instructions — duties of practitioners with regard to certifications

Counsel:

Ms VR as the Applicant

Ms AL as the Respondent

The Auckland Standards Committee

The New Zealand Law Society

DECISION

Introduction

1 Ms VR has sought a review of the Standards Committee determination to take no further action in respect of her complaints against Ms AL whom she had instructed to act for her to conclude an agreement pursuant to s 21 of the Property (Relationships) Act 1976. This review reflects the tensions that can arise when a lawyer endeavours to ensure that he or she meets the requirements placed on certifying lawyers by the Property (Relationships) Act and the Courts.

Background

2 Ms VR entered into a relationship with her husband in June 2010, whom she married in March 2011. In August 2011 she instructed Ms AL that she wished to enter into a contracting out agreement pursuant to s 21 of the Property (Relationships) Act 1976 with her husband.

3 On 1 December 2011 Ms VR approved a draft letter to her husband's solicitor (Mr VS) rejecting amendments to the draft agreement proposed by him and returning the draft with tracked changes.

4 On 7 December 2011, Ms VR sent an email to Ms AL. It read:

Hi [Ms AL]

I know we spoke last week about some more changes to be made to the agreement and you then sent a letter to [Mr VR's] lawyer, [Mr VS], with those changes.

However, I have given it much thought and I am happy to and would like to sign the agreement now as it is pre the above changes.

Could I please arrange a time to come to see you to do so?

5 Following email correspondence between the parties on 12 December 2011 (in which Ms AL noted that she wished to explain the terms of the Agreement to Ms VR) an appointment was then made for Ms VR to attend at Ms AL's office on 19 December.

6 Following that meeting Ms AL made a file note in which she recorded her advice to Ms VR, particularly her advice with regard to the terms of the Agreement which provided for property to be divided in the event of separation according to contribution unless the couple had a child, in which case the equal sharing provisions of the Act would apply to property acquired after the commencement of the relationship.

7 Ms AL recorded: 1

We agreed to sign the Agreement in the form that was acceptable to [Ms VR] and send to [Mr VR]' lawyer for them to think about over the Christmas break. If they were not prepared to accept the Agreement in that form then I would not be involved in certifying the Agreement. Whilst [Mr VR's] lawyer considered that I was obliged to certify, I explained to [Ms VR] that I believed it was more complex than that.

8 She further recorded that she: 2

would not collude in a process which involved her being pressured to sign an Agreement and that the very essence of independent advice was that she was entitled to make up her mind in an independent fashion free from such pressures. She would be left in the position where she would need to take the Agreement to another lawyer who may be prepared to certify it but I would be very surprised if they would do so.

9 Ms AL then prepared a draft letter to Mr VS in which the Agreement signed by Ms VR was to be sent. In that draft she intended to advise Mr VS that “the Agreement has been finalised in accordance with the tracked changes version I sent to you on 1 December 2011.” 3

10 At the same time as sending that draft to Ms VR for approval, she sent a bill for work carried out between 31 October 2011 and 19 December 2011 for $1,405 plus GST and an administration fee. The fee was prepared in accordance with time records which were attached to the bill.

11 On the same day (23 December 2011) Ms VR sent an email to Ms AL: “I have had a bit of a think and I think I would rather leave this to send in the New Year if that is ok?”

12 On Ms AL's return to the office on 23 January 2012 following her Christmas break, she noted an email from Ms VR which had been sent on 16 January:

Hi [Ms AL] / [AM],

Happy New Year to you both! I hope you both had a lovely break.

[Ms AL], I asked [AM] to hold off sending the attached last year before Xmas in the end as I decided that I wanted a bit of time to think about things first, as it all felt a bit rushed. I had a big think about things over the break and I also talked to [Mr VR] about it. [Mr VR] is still in the position where he will not sign the attached Agreement — he will only sign the Agreement prior to these changes.

I know we had a talk about all of this when I met with you last in December [Ms AL]

- and I know I agreed with you at the time that we should make the changes but at the end of the day this is having a huge impact on my marriage by dragging out too long and I would rather just sign it and be done with it! Compromise has already been made for me which I am happy with (thanks to you for that!) and I think that it is a very unlikely situation that [Mr VR] & I will have a child. I plan to have a strong career and make my own money (as much as or more than [Mr VR]) therefore the Agreement is not going to disadvantage me if we did happen to break up later on down the track.

I am not sure whether you will want me to come back in and meet with you — or if you will even sign me up on the Agreement prior to the attached changes (as you had mentioned in our last meeting that you might not if I were to ask you to). This is really my final position on the subject and I am 100% certain that it is what I want. I

don't feel under any pressure anymore (as I did last year) after having had a good amount of time to give it some serious thought and think about what I want.

Thank you once again for all your time and help with this.

13 Ms AL responded by email on 26 January and strongly recommended against the proposal by Ms VR to sign the Agreement in its original format. She advised that she would be happy to meet and discuss the matter with Ms VR.

14 Ms VR then replied noting that the Agreement to which she was referring did in fact include the provisions that Ms AL wished to have incorporated into the document. In response, Ms AL noted that this was the form of the Agreement which Ms VR had instructed her not to send on 23 December.

15 Subsequently, Ms AL advised Ms VR that she wanted to meet with her to ensure that she fully understood the terms of the Agreement that she wished to sign and that she would then record that advice in writing. In her email of 13 February she noted:

I do not expect that it will take long to do so but you will appreciate that I take my certification responsibilities seriously and that your position has changed. Part of my role and responsibility is to ensure that your understanding of the legal position is clear and that you are not under pressure which might affect that understanding.

16 Very little occurred subsequently, other than Ms VR advised that she considered Ms AL's bill of 21 December to be too high after Ms AL's office had made contact seeking payment of the account.

17 Ms VR lodged her complaint on 2 April 2012.

Ms VR's complaints and the Standards Committee determination

18 Ms VR's complaints are encapsulated in the first paragraph of her letter accompanying the complaint form. She stated: 4

I engaged [Ms AL's] services in August 2011 in relation to a Property Relationship Agreement with my husband [Mr VR]. The whole matter was dragged out unnecessarily and was never resolved. [Ms AL] did not follow my instructions in this matter and on numerous occasions I wanted to sign the Agreement but [Ms AL] would not sign me up. [Ms AL] failed to inform me on the work she was undertaking (particularly in relation to the period she has billed me for in her latest bill), there have been unreasonable delays in the provision of [Ms AL's] advice and

on several occasions she failed to reply to my phone calls and emails. I constantly had to chase [Ms AL] to reply to my emails and she often replied with incorrect information or would not answer my queries.

19 The Standards Committee summarised Ms VR's complaints as being: 5

• i. Failure to keep the client informed.

• ii. Failure to respond to client queries and provide accurate information.

• iii. Overcharging.

20 The Committee determined pursuant to s 138(2) of the Lawyers and Conveyancers Act 2006 to take no further action in connection with the complaints on the grounds that further action would be inappropriate. It concluded that the fees charged by Ms AL were fair and reasonable in relation to work appropriately undertaken in the matter. With regard to Ms VR's other complaints the Committee determined: 6

The Committee did not find any evidence to support claims that Ms [AL] had failed to follow instructions or had failed to keep the client informed. The onus was on Ms [AL] to ensure that the client understood the legal implications of any change of heart and Ms [AL]...