TG v NP
| Jurisdiction | New Zealand |
| Judge | O W J Vaughan |
| Judgment Date | 01 February 2013 |
| Neutral Citation | [2013] NZLCRO 5 |
| Docket Number | LCRO 190/2011 |
| Court | Legal Complaints Review Officer |
| Date | 01 February 2013 |
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
[2013] NZLCRO 5
O W J Vaughan
LCRO 190/2011
Legal Complaints Review Officer
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.
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
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.
TG and his Ukrainian partner (TH) decided to marry in January 2000.
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.
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.
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.
TG sought assistance from TI who ultimately advised that she could not act for TG and referred him to NP.
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 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.
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.”
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.
NP also referred to TG's attitude towards her and members of her firm as being “negative and confrontational.”
TG says that following receipt of that letter, he was left bewildered and intimidated.
His complaints were:
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1) That NP's conduct was threatening and intimidating in this letter and in other correspondence.
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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.
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3) That the firm had failed to return to him case studies that he had provided from his own research.
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4) That NP had failed to follow instructions or make use of material provided by him which he considered would destroy TH's credibility and force her into settling at the figure offered by him.
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5) NP's poor preparation and presentation at the settlement conference as well as a general lack of attention to the file, which included a failure to obtain supporting affidavits.
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6) Poor accounting practices, failing to provide receipts and to credit payments made.
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7) Misappropriation of money held in the trust account of CCC, NP's instructing solicitors.
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8) Failing to provide the appropriate client information.
Prior to completing its determination, the Standards Committee obtained a report from a costs assessor on NP's bills. The Assessor recommended that the bills of costs be upheld, but commented that NP could have communicated better with TG as to his responsibility for certain costs.
The Committee also obtained and reviewed NP's file before completing its determination.
Following consideration of all of the material provided, the Committee made the following determinations. I have recorded these under the headings used by the Committee, which largely reflect the points of TG's complaints as identified above.
…In the Committee's view, in the circumstances of what had become a rather difficult relationship between [NP] and [TG], a concern about payment [did] not seem unreasonable. The action proposed by [NP] would be lawful and therefore could not be categorised as threatening or intimidating behaviour.
The Committee found no evidence of collusion or conflict of interest. It commented that “when it reached the point where [TI] may have been required to provide affidavit evidence in the proceedings, [NP] sought a change of instructing solicitor to ensure no conflict of interest would occur.” 1
The Committee considered that there was no evidence that NP did not follow all proper instructions.
The Committee noted that “[TG] was not impressed with [NP's] performance as an advocate at the settlement conference.” The Committee determined however that:
whether her performance was lacking or not, it did not appear to have led to any consequences that would require disciplinary action nor [did] it appear to have resulted in any adverse comment from the presiding judge.
The Committee accepted the costs assessor's report and found that the bills of costs were fair and reasonable. It therefore determined that it had no jurisdiction to review the [bills issued] before 1 August 2008 and upheld the bills issued after that date.
Whilst the Committee observed that “invoicing could have been of a better standard, it was not so lacking as to constitute a breach of the Rules.”
The Committee considered that this was a very serious complaint. It arose from that fact that CCC paid NP $99.42 on 29 January 2009. This appears to have been the amount left of the funds held in trust by that firm for TG. It was paid in part payment of an invoice of 17 December 2008 for $2090.53.
The Committee stated that this complaint was misguided and appeared to arise from TG's misunderstanding of the relationship between a barrister and an instructing solicitor. It noted that the funds paid into CCC trust account were held on the instruction they be used to pay NP's fees. It considered that NP had not misappropriated funds. The Committee considered that, having paid the funds to the instructing solicitors for NP, TG could not instruct NP not to claim for her fees. NP appropriately invoiced CCC for fees owing and CCC paid her the $99.42 remaining in the trust account. The Committee considered that CCC was obliged to make this payment, both under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 and in accordance with TG's instruction that it be used to pay such fees.
It concluded that there was no evidence of wrongdoing on the part of NP or CCC.
This complaint refers to [NP] not providing [TG] with a letter of engagement setting out the client care information required by the Lawyers and Conveyancers Act 2006.
The Committee noted that:
There was therefore no breach of the former or the current legislation.
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1. [TG] first instructed [NP] prior to the Act coming into force [and] there was no such requirement under the previous Act.
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2. Even under the present Act, there [was] no obligation for [NP], as barrister receiving instructions from a solicitor, to provide a letter of engagement, unless this [was] specifically requested.
As a result of its conclusions, the Standards Committee determined pursuant to section 152(2)(c) of the Lawyers and Conveyancers Act to take no further action in respect of the complaint. The Committee however added some guidance for NP as follows:
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a) That she should provide sufficient detail in her bills of costs to enable her lay clients to understand the nature of the work...
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