RU v MW

• Jurisdiction: New Zealand
• Judgment Date: 18 October 2012
• Neutral Citation: [2012] NZLCRO 95
• Date: 18 October 2012
• Docket Number: LCRO 293/2011
• 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 Canterbury-Westland Standards Committee 1

Between

RU

Applicant

and

MW

Respondent

[2012] NZLCRO 95

LCRO 293/2011

Application for review of decision declining to uphold complaint that practitioner had given applicant poor service and had not acted in his best interests — following conviction for assault, applicant had considered judicial review proceedings — practitioner had advised applicant he had little chance in contemplated proceeding and that the Legal Services Agency was unlikely to fund the litigation — applicant alleged practitioner had failed to file application for legal aid and had not advised that applicant could apply for legal aid himself — applicant sought cancellation of bill for initial consultation as remedy — bill was for less than $2000 and Standards Committee declined to deal with it pursuant to r29(b) Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008 (must not deal with bills under $2000 unless special circumstances justify otherwise) — whether special circumstances existed.

RU as the Applicant

MW as the Respondent

The Canterbury — Westland Standards Committee 1

The New Zealand Law Society

Secretary for Justice (redacted)

DECISION

1 This is an application for review of a decision of the Canterbury-Westland Standards Committee 1 which considered a complaint by RU (the Applicant) against MW (the Practitioner). The Standards Committee declined to uphold the complaint, and the Applicant seeks a review of that decision.

Background

2 The Applicant was convicted of assault in 2006, a decision which he unsuccessfully appealed to the High Court and the Court of Appeal. It appears that as part of the result of a later complaint to the Judicial Conduct Commissioner he was advised that the avenues open to him at that stage was either judicial review or appeal.

3 In the words of his complaint to the New Zealand Law Society (NZLS) Complaints Service dated 4 July 2011, because he “had already appealed the original decision it seemed evident to (him) that a judicial review was the most appropriate avenue”. Therefore he approached a local law firm, meeting with the Practitioner on 30 May 2011.

4 The Practitioner read the various Court decisions and other relevant material, including the Applicant's summary of his “fresh evidence” and provided him with an opinion to the effect that the Applicant had “no prospect whatsoever of a successful application for re hearing”, nor did he think that the Legal Services Agency (LSA) “would be prepared to fund any kind of criminal or civil procedure based on the events which [had] occurred”. (The LSA is now part of the Ministry of Justice but for convenience sake it still will be referred to in this review as the Legal Services Agency/LSA.)

5 The basis for this conclusion was that “the merits of the matter [had] been fully traversed in the three Courts which [had] had to consider the proceedings”. The Practitioner indicated his view that no further time need be spent on the matter, and included a note of his costs. His final sentence was as follows:

As we advised you, it is not possible for us to agree to undertake work on a legal aid basis from a first interview where we need to make an assessment as to whether the Legal Services Agency would even support such proceedings and in this case we are satisfied that… you would not obtain a grant of legal aid and we therefore bill your privately according to the time spent on the matter.

The bill with disbursements and GST totalled $452.50. On the same day as the Practitioner's opinion was sent to the Applicant he was sent the Practitioner's Terms of Engagement and Information for Clients.

6 The Applicant was unimpressed with the Practitioners opinion, and in particular receiving an invoice, and informed the Practitioner that it was his understanding that the billing period would only commence once the Practitioner had decided to apply for legal aid on the Applicant's behalf. The Practitioner replied immediately, repeating his view that there was not “ any realistic possibility of a [successful] appeal or judicial review”, and reminded the Applicant that the payment arrangements had been made clear from the outset, in particular that legal aid was not available for the initial consultation since until it was known what the Applicant had in mind, it could not then be known whether Legal Services Agency would approve funding, and that this had been agreed to by the Applicant.

7 In his correspondence to the Standards Committee the Applicant did not dispute the above, but was of the view that the Practitioner had not advised him in any manner that promoted the interests of the Applicant in the circumstances that there was ‘new evidence’. He advised the Standards Committee that he had obtained a “second legal opinion” which apparently informed him that (a) under legal aid, legal representation was decided and supplied by or through the Legal Services Agency, and (b) that he could make an application himself without the need of a lawyer. (There is no copy of this second opinion on file so presumably this advice was verbal.)

8 He considered that the Practitioner's bill was not fair and reasonable because the Practitioner “ had not acted in [the Applicant's] best interests and had given [the Applicant] poor service…and had misrepresented the terms of his billing system at [the] original interview”. The outcome he sought was cancellation of the Practitioner's invoice.

9 In its decision the Standards Committee identified two issues in the complaint: the fact that the Applicant had been billed, and that legal aid had not been applied for on his behalf.

10 Regarding the billing issue, the Committee decided to take no further action, relying on Regulation 29(b) of the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008 (the Regulations) which states that without “special circumstances that would justify otherwise” Standards Committees must not deal with complaints relating to fees below $2,000. Underlying this decision is the Committee's acceptance that the Practitioner had “ made it very clear” to the Applicant that “ he would need to pay privately for the initial consultation and the amount charged of one hour for his time [was] fair and reasonable”. It did not discuss the question of whether or not there...