NE v RL
| Jurisdiction | New Zealand |
| Judgment Date | 27 February 2015 |
| Date | 27 February 2015 |
| Docket Number | LCRO 88/2013 |
| 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 [North Island] Standards Committee [X]
LCRO 88/2013
Application for review of a Standards Committee decision to take no further action — during the course of review it became apparent that there was another issue that had not been considered by the Committee, namely whether there had been a breach of r7 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (promptly disclose to a client all information that the lawyer has or acquires that is relevant to the matter) — practitioner had received 150 medical documents which she sent to a medical expert to determine relevance to the matter at hand — advised client as to number of records received and procedure for determining relevancy — later only gave him copies of the relevant records — client complained that he had not received all records — whether the new issue could be considered by the LCRO when it had not been considered by the Committee — whether there had been a breach of r7.
Mr NE as the Applicant
Ms RL as the Respondent
Mr SA as a Related Person under s 213
[North Island] Standards Committee [X]
New Zealand Law Society
Secretary for Justice
Mr NE has applied for a review of a decision by the [North Island] Standards Committee [X] dated 20 February 2013 in which the Committee decided to take no further action on Mr NE's complaints with respect to Ms RL's conduct and fees charged by her firm.
On 1 February 2011 Mr NE instructed SA to represent him in a paternity dispute before the Family Court. In his complaint to the New Zealand Law Society (NZLS) 1 Mr NE says he initially met with Mr SA, and was told that Ms RL would assist him, but that Mr SA would represent him in court.
In response to a request for an estimate of costs, Mr NE says he was told that a day's hearing in court would cost between $5,000 and $7,000, but he says that fees then
escalated beyond his expectations. I note from materials provided by Mr NE 2 Committee commenced a separate own motion enquiry in respect of the fees, and did not address that as part of Mr NE's complaint against Ms RL. As that matter appears to have been addressed elsewhere, and is not the subject of the decision on review, I have not considered the fees aspect of Mr NE's complaints against Ms RL, despite it having been referred to in the Committee's notice of hearing and in the course of the review hearingMr NE says he dealt mostly with Ms RL. He is critical of her interpersonal skills, says she did not act in his best interests, did not communicate well and lacked the necessary expertise to handle his matter. He says she appeared to be unprepared at meetings, had not come to grips with the evidence and handled discovery incompetently. He says she failed to review the contents of a CD he had provided, and that the other party disclosed medical records to Ms RL in July, but she delayed making them available to him until 30 August 2011. He says he became increasingly concerned about her ability to assist him.
Mr NE says that when he became aware that the firm was reluctant to continue acting without him having paid his fees, he instructed Ms RL to forward his files to his new lawyer. He says she assured him that he had all of the disclosed documents, but he later discovered that she had not given him everything the other party had provided to her, and that discovery was incomplete. He says Ms RL had discontinued a discovery application on the basis that discovery was complete. 3 As a result, he says his new lawyer had to apply for further discovery, which would have been unnecessary if Ms RL had handled her part of discovery competently. He resents having to pay his new lawyer to do work he considers Ms RL did not do properly, but has billed for.
Mr SA responded on Ms RL's behalf, 4 describing the background to the Family Court proceeding, and his advice to Mr NE that he considered his preferred strategy of avoiding a routine paternity test was a tenuous and unusual approach. Mr SA says Mr NE's approach, including requesting that the applicant for paternity orders disclose her medical records, was resisted by the applicant, and that added to the cost and complexity of the proceeding. Mr SA says Ms RL communicated appropriately, dealt with the file competently and skilfully. He says where necessary she consulted with him and he regularly supervised her. He says she corresponded appropriately with Mr NE until a formal application for a declaration that SA was no longer instructed was made on 30 October 2011.
[North Island] Standards Committee [Y] directed the parties to explore resolution of Mr NE's complaint by alternative resolution under s 143 of the Lawyers and Conveyancers Act 2006 (the Act). The parties were unable to resolve their disputes, and the complaint was considered by [North Island] Standards Committee [X] (the Committee).
The Committee issued a notice of hearing 5 advising the parties that it intended to consider the complaint on the basis that it related to poor service, 6 failure to communicate and keep Mr NE informed, 7 overcharging, 8 failure to follow instructions and complete discovery, 9 and filing a notice of discontinuance for the discovery application prematurely and before discovery was complete. 10
The parties provided submissions and further information to the Committee. On Ms RL's behalf, Mr SA acknowledged that although she routinely practices in the Family Court jurisdiction, she had no experience in paternity applications that were not to be dealt with on the usual basis that the ostensible father would submit to a DNA test.
Mr SA refutes Mr NE's criticisms of Ms RL's conduct overall, and with respect to discovery says that the other party's lawyer undertook to file a full set of documents with the Family Court and Ms RL's reliance on her to do so was reasonable in the circumstances at the time. 11
Mr NE repeated his request for compensation, 12 based on the expense of his new lawyer having to obtain copies of his files from the Court when Ms RL's firm withheld his file because he had not paid, and duplicating work on discovery after Ms RL withdrew the previous application for discovery.
The Committee then considered the materials before it, and broadly rejected Mr NE's complaints. The Committee recorded that it was:
…mindful that not every mistake, error or oversight amounts to unsatisfactory conduct as defined by sections 12 (a) and (b) of the Act. A ‘reasonably
competent lawyer’ does not mean a lawyer who never makes a mistake. Reasonable competence does not mean perfection.
In all the circumstances the Committee did not consider that a finding of unsatisfactory conduct against Ms RL was warranted, and determined to take no further action on the matter pursuant to ss 138(2) and 152(2)(3) 13 of the Act.
Mr NE was not satisfied with the outcome, and applied for a review.
In his review application, Mr NE says the Committee did not properly consider the consequences of Ms RL's lack of attention to detail. He says her failure to do her job properly added significantly to his costs, and he maintains his complaint about her lack of competence. He says that her conduct was not to an acceptable standard and resists paying for Ms RL's incompetence. He asks that all of his fees be refunded, and that disciplinary action be taken against Ms RL.
Ms RL generally relied on the evidence and submissions that had been presented to the Committee, and highlighted the work she had done with respect to the documents supplied by the other party's lawyer. She says there is no evidence of any added cost to Mr NE, repeating her reliance on the other party's lawyer to produce a full bundle of her client's document to the Court, which would also have been available to Mr NE's new lawyer.
Ms RL also referred to paragraph [16] of the decision saying the Committee was incorrect in saying that:
The Committee accepted that Ms RL took steps to check and cross-check documents to hand, which may explain why it took a month to pass the documents on to Mr NE. it appears Ms RL may not have realised at that time that neither she, nor Mr NE, received a copy of all the documentation….
(Ms RL's emphasis)
Ms RL says that she promptly identified that documents were missing so she requested copies from opposing counsel by email, and supplied copies of the relevant emails. She also said:
It was not initially intended that the records were to be passed on to Mr NE. They were to be passed directly to the expert. We refer to paragraph 22 of our submissions.
A month passed because the writer first liaised with the expert Dr ZO. We had told Mr NE this would occur in our email to him of 26 July 2011, which is attached once again for completeness.
The email to Mr NE dated 26 July 2011 said:
… we have just received over 150 pages of [the applicant's] medical records by email. In all likelihood we will now be able to discontinue the discovery proceedings and will not need to go to the 10 August hearing.
The next step is to send the records to the expert we found, Dr ZO, who can assess conception date range. This will of course be an additional cost to you, but in our view a necessary step for the proceedings. We will send him a fax today asking for an estimate of costs…
When he received Ms RL's submissions, Mr NE said that he had not been provided with a copy of Mr SA's submissions to the Standards Committee dated 26 November 2012. This Office provided a copy of those submissions, and Mr NE...
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