RU v MW

 
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[2012] NZLCRO 95

LCRO 293/2011

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

RU as the Applicant

MW as the Respondent

The Canterbury — Westland Standards Committee 1

The New Zealand Law Society

Secretary for Justice (redacted)

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.

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

Held: The practitioner's bill was less than $2000 and in the absence of special circumstances could not be dealt with by the Committee. The term “special circumstances” was not defined but had been discussed in Cortez Investments Limited v Olphert & Collins where it had variously been said to be a “simple risk of injustice” or “where the interests of justice [lay] in all the circumstances” or “abnormal, uncommon, or out of the ordinary” circumstances.

The applicant's complaints were about service-related issues. The information on file showed that the practitioner was asked by the applicant to provide advice about judicial review. Judicial review was a process which was part of the civil (not criminal) jurisdiction of the High Court. A grant of civil legal aid would be sought on behalf of a litigant by his or her lawyer. By comparison, criminal legal aid could be applied for directly by the litigant to the LSA.

It appeared that the second legal opinion the applicant obtained was directed at the criminal jurisdiction (further pursuit of an appeal) since he advised that he had been given a legal aid form to fill in himself and told that legal aid would be supplied from a legal services roster. The practitioner's advice was about legal aid related to the civil jurisdiction (judicial review), and there was no professional wrongdoing in the advice that was given in relation to the availability of civil legal aid, nor in respect of the practitioner's failure to have made an application for that purpose.

The practitioner's responsibility in the first instance was to provide advice about judicial review, and he advised that the applicant's prospects of succeeding were poor, adding that the LSA would be unlikely to fund the litigation. The practitioner was required to give the applicant his professional advice on a specific legal remedy that the applicant had sought. The advice was realistic, practical and professional. There was nothing about the advice that raised disciplinary issues for the practitioner. The practitioner could have been criticised had he made (and charged for) an application for civil legal aid which had little prospect of success, and was declined. There was nothing “abnormal, uncommon or out of the ordinary” in the circumstances relating to the bill.

In respect of whether the practitioner had misled the applicant in respect of payment for the initial consultation, the practitioner's advice (supported by his file note) was preferred, namely that the applicant was told that the original interview could not be on legal aid as he (the practitioner) had no awareness of whether the client would be entitled to legal aid for review proceedings and the applicant understood that.

There were no “special circumstances” in this case that would have justified the Committee giving further consideration of the fee-related complaint. In the circumstances the Committee was correct to take the complaint no further.

Standards Committee decision confirmed.

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...

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