TG v NP

 
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[2013] NZLCRO 5

Legal Complaints Review Officer

O W J Vaughan

LCRO 190/2011

Concerning an Application for Review Pursuant to Section 193 of the Lawyers and Conveyancers Act 2006

and

Concerning a Determination of Wellington Standards Committee 1

BETWEEN
TG
Applicant
and
NP
Respondent

TG as the Applicant NP as the Respondent

NN as the Respondent's Representative

TJ of CCC

Wellington Standards Committee 1

The New Zealand Law Society

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

Application under s152(2)(c) Lawyers and Conveyancers Act 2006 (power of Standards Committee to determine complaint or matter) for a review of a Standards Committee determination not to take any further action against the respondent who represented the applicant in connection with an application by applicant's wife to set aside a prenuptial property agreement — complaints concerned alleged overcharging, failure to follow instructions, failure to provide a letter of engagement setting out the client care information and misappropriation of money held in the trust account of the respondent's instructing solicitors — applicant had instructed the respondent directly — issues concerning “reverse briefs” and the intervention rule.

The issues were: whether NP had misappropriated client money; whether NP had engaged in misconduct; and whether NP had overcharged.

Held: NP's use of the firm's trust account had resulted in an incorrect view by NP of her entitlement to the funds held by that firm. CCC had been required to obtain specific instructions from TG to make any payments from funds held on his behalf. The firm of CCC had made the payment without authority and TG should have directed his instruction that no further payment was to be made to CCC. However, that was not a criticism of TG, as he had had no information from NP or CCC about the role of the instructing solicitor.

As the amount in question was minimal, no real harm had been done. However, it was important that barristers and solicitors who accepted reverse briefs should take note of the fact that until the intervention rule was amended, the Rules remained to be observed, and practitioners who did not fulfil their obligations remained exposed to the disciplinary consequences.

Although funds might be paid into a solicitor's account for payment of a barrister's fees, that did not mean that the funds could be paid at the direction of the barrister without authority from the client.

TG's complain of threatening and intimidating conduct related to a letter from NP requiring payment of her accounts, failing which she would withdraw as counsel. The letter was sent after NP's junior had advised that she was unable to continue working with TG following a confrontation. TG had to take some responsibility for the tone of NP's letter. He could not have expected that NP and her staff would respond positively to his conduct towards them, and it was therefore reasonable for NP to be somewhat frank and direct with him. In the context of the relationship between TG and NP and her staff, her letter could not be seen as threatening and intimidating.

Consideration of whether a lawyer's bill of costs was fair and reasonable did not involve a process whereby the bill was subjected to a detailed scrutiny and then adjusted. What was required was to determine whether a lawyer's bill of costs was fair and reasonable within an acceptable band. A lawyer would often be alert to issues that were relevant to a client's position which were beyond the recognition of the client. If the lawyer did not draw the client's attention to such matters, they would certainly stand exposed to a claim in negligence. The advice provided by NP and her staff was properly given. There had not been any error on the part of the Costs Assessor or the Committee; in the circumstances NP's billing conduct had not breached the obligations imposed by the CC Rules.

NP could not be accused of negligence in making the judgment not to utilise the material provided by TG. It followed that NP could not be considered to be in breach of the requirements of competence and diligence required by s12(a) LCA (unsatisfactory conduct). TG had not directly instructed NP to put the information forward and she was not therefore in breach of the requirement of r13.3 CC Rules (informed instructions) which required a lawyer to obtain and follow a client's instructions on significant decisions in respect of the conduct of litigation.

NP's bills of costs had contained minimal information. She had not given credit for the full amount paid in advance by TG, and had not issued receipts for all payments made by him. Receipts were only issued after they were requested. A barrister in these circumstances had an obligation to provide a client with proper and accurate statements and invoices in the same way that a client could expect to receive from a solicitor. The Committee's recommendations to NP to provide greater detail in her bills and refer payments and receipts to her instructing solicitors were an appropriate response to the issues involved. The CC Rules did not directly impose obligations on a barrister to provide this detail in bills and receipts. The Legal Complaints Review Tribunal in Auckland Standards Committee No.1 v Hart commented that it might be that where the barrister was in reality dealing with and receiving fees directly from the client, with minimal involvement from the instructing solicitor, a failure to comply with these obligations would result in a greater penalty.

NP had been instructed in 2007 prior to the commencement of the LCA. There was no requirement at that time to provide the client information referred to in r3.4 CC Rules (provision of information). Consequently, NP could not be held accountable in that regard. However, the Tribunal in Hart considered that a barrister was required to provide this information where the involvement of an instructing solicitor was minimal.

Pursuant to s211(1)(a) LCA (powers exercisable on review — confirm decision) the decision of the Standards Committee was confirmed.

Introduction
1

TG has applied for a review of the determination by the Standards Committee pursuant to section 152(2)(c) of the Lawyers and Conveyancers Act 2006 to take no further action in respect of complaints by TG about NP's conduct when representing him in connection with an application by TG's wife to set aside a prenuptial property agreement. Some of the issues complained of arise out of what has come to be known as a “reverse brief” and this decision makes comment in that regard.

Background
2

TG and his Ukrainian partner (TH) decided to marry in January 2000.

3

TG insisted that he and TH enter into a prenuptial agreement before the marriage took place and instructed TI (a Dunedin practitioner) to prepare the Agreement.

4

The marriage was to take place on 21 January 2000 and on the morning of their marriage they attended at TI's office where TG signed the Agreement prepared by her. TH was then taken to the office of another solicitor for independent advice as required.

5

The parties separated in 2005 and on 2 July 2007 TG received a letter from TH's solicitors advising that in their view the Agreement was grossly unfair and that TH had not received proper or adequate legal advice prior to signing the Agreement.

6

TG sought assistance from TI who ultimately advised that she could not act for TG and referred him to NP.

7

Proceedings were commenced by TH to set the Agreement aside and it is out of NP's representation of TG in these proceedings that TG's complaints arise.

TG's complaints
8

TG stated in his letter of complaint dated 24 March 2009 that the nub of his complaint arose out of a letter dated 22 July 2008 that NP had sent to him. This followed a decision by her that she would personally assume control of TG's file after her junior had advised her that she was no longer able to continue working with TG.

9

TG advises that he had voiced his unhappiness about apparent conflicts of interest, enormous bills, lack of attention to detail and repeated advice from the junior barrister that “with such a cheap prenuptial agreement” he could have expected trouble. In subsequent correspondence with NP, TG apologised for his “outburst.”

10

In her letter, NP referred to a history of resistance by TG to payment of fees. He considered that others, and in particular TI, should meet his costs. NP rendered an account for unbilled work-in-progress at that time and required him to make payment of that together with the sum of $2,500.00 as security for costs that were about to be incurred in attending a settlement conference on 11 August 2008. She required these payments to be made before 28 July 2008 and advised that unless it was made she would have no option but to seek leave to withdraw from acting for TG.

11

NP also referred to TG's attitude towards her and members of her firm as being “negative and confrontational.”

12

TG says that following receipt of that letter, he was left bewildered and intimidated.

13

His complaints were:

1
    ) That NP's conduct was threatening and intimidating in this letter and in other correspondence. 2) That NP had overcharged and billed for attendances which TG considered he should not be billed for. This included advice that he did not seek about remedies against TI and/or the lawyer who attended on TH. 3) That the...

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