WB v XD

• Jurisdiction: New Zealand
• Judgment Date: 22 July 2022
• Neutral Citation: [2022] NZLCRO 85
• Docket Number: Ref: LCRO 183/2021
• 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 [Area] Standards Committee [X]

Between

WB

Applicant

and

XD

Respondent

[2022] NZLCRO 85

Ref: LCRO 183/2021

LEGAL COMPLAINTS REVIEW OFFICER

ĀPIHA AROTAKE AMUAMU Ā-TURE

Law Practitioners — application for review of a determination of an Area Standards Committee to take no further action — allegation of competence and negligence when conducting litigation — reasonable costs factors — standards of competence — obligation to respond to client inquiries in a timely manner — Lawyers and Conveyancers Act 2006 — Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008

In accordance with s 213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:

Mr WB as the Applicant

Mr XD as the Respondent

Ms YF as a Related Person

[Area] Standards Committee [X]

New Zealand Law Society

Secretary for Justice

DECISION

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

Introduction

1 Mr WB has applied for a review of a decision by the [Area] Standards Committee [X] to take no further action in respect of his complaint concerning the conduct of the respondent, Mr XD.

Background

2 In July 2020, Mr WB was charged with family violence offences.

3 He was initially represented by a duty solicitor but subsequently engaged Mr XD.

4 Mr WB appeared in court on 13 July 2020, at which time he entered guilty pleas to the charges. Bail conditions were varied, which enabled him, subject to conditions, to return to his home. He was referred to restorative justice, and a report was required to be prepared and made available to the court prior to Mr WB's proposed sentencing date in early September 2020.

5 A copy of the restorative justice report was made available to Mr XD on 31 August 2020, together with a copy of a provision of advice (PAC) report which had been directed by the court.

6 Mr XD considered that there were aspects of the reports which presented as problematic for Mr WB. He was concerned at possibility that Mr WB could be facing a sentence of imprisonment.

7 Mr XD emphasised the importance for Mr WB of him completing an anger management course. 1 Mr WB agreed with the approach suggested.

8 Mr WB appeared in court on 8 September 2020, at which time his matter was adjourned to 16 October 2020. The presiding judge allowed the adjournment to afford Mr WB an opportunity to complete the anger management course and to enable him to provide the court with necessary information that could assist the court in giving consideration to an electronic sentencing option.

9 Mr WB was anxious to ensure that the court was provided with a full understanding of the circumstances that had led to the incident at his home.

10 Mr WB consulted a psychiatrist.

11 In December 2020, Mr WB terminated Mr XD's retainer and instructed fresh counsel.

12 Mr WB was subsequently sentenced to supervision and community work.

13 Mr XD had, in the course of the retainer, rendered two invoices to Mr WB, for fees totalling (inclusive of GST and disbursements) $4,002.

The complaint and the Standards Committee decision

14 Mr WB lodged a complaint with the New Zealand Law Society Complaints Service (NZLS) on 11 February 2021. His complaint provided a comprehensive

explanation as to the events which had transpired subsequent to his arrest, including account of his interactions with staff within the justice system

15 Concerns he identified regarding the representation he had received from Mr XD were that Mr XD had:

• (a) failed to present submissions to the court which adequately protected and promoted Mr WB's position; and

• (b) had failed to advance Mr WB's position on the basis of initial advice provided that a conviction could be avoided; and

• (c) had failed to promptly respond to indication from Mr WB of having obtained a psychiatrist opinion which would be helpful to Mr WB's case; and

• (d) had minimised the value of the psychiatrist report; and

• (e) had formed a view of Mr WB as being an emotional and volatile individual, without having evidence to support that view; and

• (f) had failed on occasions to promptly respond to requests; and

• (g) had instructed Mr WB's psychiatrist that Mr WB was resistant to attending an anger management course when that was not the case; and

• (h) had persistently failed to understand Mr WB's instructions and to promote Mr WB's position, such as to leave Mr WB with no option but to terminate the retainer; and

• (i) had failed to inform Mr WB as to the consequences of entering a guilty plea; and

• (j) had failed to discuss the issue of name suppression; and

• (k) had threatened Mr WB that a jail sentence was inevitable if his advice was not followed.

16 Mr XD responded to the complaint on 19 April 2021. He submitted that:

• (a) on request being made of him by the duty solicitor to indicate as to whether he would be able to represent Mr WB, he had reviewed the disclosure, the captioned summary and bail opposition, and confirmed his agreement to act; and

• (b) his attendances on Mr WB at court on 13 July 2020 were not peremptory in nature as indicated by Mr WB, but rather addressed a number of issues including discussion regarding the facts of Mr WB's case, a consideration of the police summary, discussion concerning plea options and the traversing of various options which would enable Mr WB to return to his home; and

• (c) in the course of Mr WB's second appearance on 13 July 2020, he had discussed with Mr WB issues relating to choice of plea, possibility of an application for a discharge without conviction, referral to restorative justice, a discussion concerning acceptance of responsibility, these discussions taking “well in excess of an hour”; and

• (d) Mr WB had made a thoughtful and informed decision in respect of his plea; and

• (e) the restorative justice report received was not particularly positive for Mr WB; and

• (f) his interactions with Mr WB had led him to form the view that Mr WB was struggling with accepting responsibility for the events that had led to the charges; and

• (g) he cautioned Mr WB against advancing submission that appeared to apportion blame for the incident to the victim; and

• (h) correspondence received from Mr WB in the course of progressing the matter (16 September 2020) clearly demonstrated that Mr WB had a good understanding and appreciation of the court process; and

• (i) a further court appearance on 16 October 2020 was lengthy and engaged ongoing discussions with Mr WB; and

• (j) he became concerned that Mr WB was entrenching himself in a position that the court would not consider to be indicative of Mr WB indicating either necessary remorse for his actions, or a receptiveness to a rehabilitative process; and

• (k) Mr WB, in his demeanour and approach, could come across as aggressive and intolerant of others' views, this perception reinforced by reports that had been prepared for the court; and

• (l) the outcome achieved by Mr WB after changing his legal representation was, in Mr XD's view, significantly influenced by the work that Mr XD had done on Mr WB's behalf; and

• (m) a considerable amount of time had been spent with Mr WB traversing plea options; and

• (n) he had not disregarded the evidence provided by the psychiatrist, but rather provided Mr WB with his view as to the relevance and effectiveness of that evidence; and

• (o) he had made his best efforts to keep Mr WB “grounded in the realities of the court process and the timeframes involved”; and

• (p) he had acted at all times in accordance with Mr WB's instructions; and

• (q) at the end of the day, he was unable to bring his representation of Mr WB to conclusion as a consequence of Mr WB terminating the retainer; and

• (r) he had not discussed name suppression with Mr WB as Mr WB had not indicated any sensitivity in respect of the possibility of publication and no order had been made following the first appearance in which Mr WB was represented by the duty solicitor; and

• (s) whilst it was correct that on occasions, he had not responded immediately to Mr WB, he had responded when he considered there was need to provide response in a timely manner; and

• (t) he had never threatened Mr WB with prospect of a jail sentence if his advice was not followed; and

• (u) Mr WB had received a fully itemised and substantially discounted account; and

• (v) Mr WB had been a difficult client to deal with.

17 Mr WB provided a comprehensive response to the reply Mr XD had provided to his complaint on 31 May 2021. I do not propose to address all the submissions raised.

To some extent there is a degree of overlap with submissions filed earlier. Mr WB submitted that:

• (a) Mr XD had not represented him in the first court appearance, but had charged him three units for an appearance; and

• (b) he was unaware that Mr XD would be representing him until the second court appearance; and

• (c) he held to his view that Mr XD had only spent a modest amount of time with him discussing the case at the first meeting; and

• (d) time charged for attendances at court by Mr XD had included time that Mr XD had spent on work for other clients; and

• (e) Mr XD had neglected to respond promptly to communications on a number of occasions; and

• (f) queries Mr XD had made of his staff to clarify as to whether Mr WB was legally aided, would indicate that Mr XD had, six weeks after being engaged, overlooked that Mr WB had instructed him as a private client; and

• (g) correspondence from Mr XD indicated that he continued to ignore instructions, and that he had adopted the “biased” views reflected in the police summary and PAC; and

• (h) Mr XD had repeatedly failed to listen to his instructions and to sufficiently grasp the extent to which the unfortunate circumstances...