PB v AL

• Jurisdiction: New Zealand
• Judgment Date: 23 February 2015
• Neutral Citation: [2015] NZLCRO 5
• Date: 23 February 2015
• Docket Number: LCRO 73/2014
• 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

BETWEEN

PB

Applicant

and

AL

Respondent

[2015] NZLCRO 5

LCRO 73/2014

Application for a review of a decision by a Standards Committee to take no further action against the practitioner — complaint against a barrister who appeared in the Family and High Courts on separation and relationship property issues — the various proceedings were vehemently contested by the parties — practitioner was seeking payment of unpaid fees totalling $102,000 by way of recovery proceedings — complainant said practitioner had charged unfair and unreasonable fees for the services he had provided, failed to inform her that he was unable to undertake work under legal aid until after he had rendered invoices, and improperly terminated his retainer, without providing her with reasonable assistance — whether the practitioner had exercised reasonable care and competence — whether the fee was unreasonable and excessive.

Counsel:

Ms PB as the Applicant

Mr AL as the Respondent

The [North Island] Standards Committee

The New Zealand Law Society

DECISION

Introduction

1 Ms PB has applied for a review of a decision by the [North Island] Standards Committee dated 14 February 2014 in which the Committee decided to take no further action on any aspect of Ms PB's complaint against Mr AL, pursuant to s 138(2) of the Lawyers and Conveyancers Act 2006 (the Act).

Background

2 Between 30 April 2009 and 16 November 2011, on instructions from [Firm] barristers and solicitors, Mr AL acted for Ms PB in proceedings before the Family and High Courts relating to Ms PB's separation from her partner and the division of property. The various proceedings were vehemently contested by the parties. Many applications, cross-applications, opposition and other documents were filed and served. Discovery was difficult.

3 Ms PB's arrangement with [Firm] was that they were not responsible as instructing solicitor for Mr AL's fee. Initially she paid Mr AL's invoices directly to him,but when her source of funding stopped around June 2011 she was unable to pay any more, and Mr AL's unpaid fees now total $101,948.51.

4 [Firm] then commenced recovery proceedings against Ms PB, on behalf of Mr AL, who cannot sue to recover his own fees because he is a barrister. Ms PB responded by laying a complaint to the New Zealand Law Society (NZLS) on 11 May 2012.

Standards Committee

5 In her complaint, Ms PB asserts that Mr AL charged unfair and unreasonable fees for the services he had provided, failed to inform her that he was unable to undertake work under legal aid until after he had rendered invoices, and improperly terminated his retainer, without providing her with reasonable assistance.

6 During the course of the Committee's enquiry into her complaint, Ms PB expanded her concerns to include allegations that Mr AL did not properly account for or explain the time he had spent working for her, and had not acted competently or in a timely manner, resulting in her losing her home. She also says that he failed to attend an urgent telephone conference on 7 November 2011, which she says is before he terminated the retainer, and accessed confidential information about her after he had terminated his retainer. She also alleges that he failed to pay her fee for legal services she had separately provided to him.

7 The Committee considered each of the complaints in the context of the relevant rules. Overall it assessed the fees as fair and reasonable, after considering a “comprehensive and detailed” report by a costs assessor, 1 and the relevant factors under rules 9 and 9.1.

8 It found that Ms PB had known throughout that Mr AL was unable to undertake legal aid work, and her complaint was therefore unsustainable.

9 The Committee did not consider Mr AL's conduct at the end of the retainer was improper, nor did it consider that Mr AL had, as alleged, “discussed with or accessed confidential information from third parties following the termination of the retainer”. 2 On hose bases, the Committee decided that further action on Ms PB's complaints was unnecessary or inappropriate pursuant to s 138(2) of the Act.

10 Ms PB disagreed with that outcome, and applied for a review.

Review Application

11 Ms PB provided a sophisticated and detailed critique of Mr AL's conduct of various court proceedings in Australia and New Zealand associated with her separation, and the division of relationship and other property at the end of her relationship with her partner of 12 years.

12 At the review hearing Ms PB found herself unable to say that she agreed with anything Mr AL had done for her.

13 Ms PB maintains her protest over fees, referring to Auckland Standards Committee 3 v Castles, 3 and a submission made by the Standards Committee in that case to the effect that billing on the basis of time alone would be inconsistent with generating a fee that is fair and reasonable. Ms PB's view is that Mr AL should have adopted a value-based approach to billing, rather than billing her on the basis of the time he says he had spent on her matter, but without having any time records to validate the fees he claims. In any event, she says that his time records are “vague and unreliable”, do not reconcile with the file, and cannot be verified against any contemporaneous records. 4

14 Ms PB disputes the Standards Committee finding that an “unexplained fee of $221,953.62” was fair and reasonable, because Mr AL left her in “a worse position” than she had been in when she first instructed him, including her having to borrow heavily from her father. She says he did not resolve her position, and did not justify his fee, which she says is disproportionate. She does not consider Mr AL's fee represents good value for money, and in essence maintains her complaint that he mismanaged various aspects of proceedings in which she was involved, and consequently did not achieve the result she wanted.

15 Ms PB listed a catalogue of alleged errors, including Mr AL having avoided providing an opinion on her prospects of success and strategic options, failing to obtain expert medical evidence by affidavit in support of an application to the Court, and failing to attend properly to discovery, all which she considers should have resulted in a reduction in her fees.

16 She repeats her concerns around termination of the retainer, including that Mr AL failed to appear at an urgent telephone conference, and did nothing to assist the instructing solicitors to take over the conduct of her matters at the end of his retainer.

17 Ms PB is also concerned that, without her knowledge or consent, Mr AL discussed her matter with third parties after he had ceased acting. Ms PB has provided no evidence to support that allegation and it will receive no further attention on review.

18 Ms PB says that when she did not pay Mr AL, he refused to negotiate with her over his fee, refused to continue to act, and made it difficult for her to instruct new counsel by withholding all or part of her file. Ms PB says that by doing so he prejudiced her position in the litigation.

19 She maintains that Mr AL advised her very late on that he was not an approved legal aid provider, and that he should have told her earlier.

20 Ms PB refers to her original letter of complaint, says the Committee did not address the detail of it, provide sufficient reasons, sufficiently analyse the documents she had provided, and did not discuss the principles or...