Wellington Standards Committee v 2 Papali'i Toti Lagolago
| Jurisdiction | New Zealand |
| Judge | D F Clarkson,Mr M Gough,Mr G McKenzie,Mr K Raureti,Mr B Stanaway |
| Judgment Date | 13 August 2015 |
| Neutral Citation | [2015] NZLCDT 25 |
| Docket Number | LCDT 044/14 |
| Court | Lawyers and Conveyancers’ Disciplinary Tribunal |
| Date | 13 August 2015 |
In the Matter of the Lawyers and Conveyancers Act 2006
Judge D F Clarkson
Members of Tribunal
Mr M Gough
Mr G McKenzie
Mr K Raureti
Mr B Stanaway
LCDT 044/14
NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
Charges brought by the Standards Committee arising from a barrister's representation of clients in the District Court (DC) — DC judge had been highly critical of the bringing and conduct of the proceedings — the outcome was that a debt of around $11,00, capable of being resolved in the Disputes Tribunal without legal fees, was escalated into a two-day hearing in the DC where there was judgment for $45,000 — whether s50 Evidence Act 2006 (Civil judgment as evidence in civil or criminal proceedings) precluded the DC Judge's comments being adduced in evidence — whether the barrister had failed to adequately advise her clients as to alternatives to litigation contrary to r13.4 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 — whether the barrister had failed to give clients informed independent advice contrary to r13,3 — whether the pleadings and conduct of the case were objectively so flawed and unlikely to succeed that it amounted to negligence.
Ms K Feltham for the Standards Committee
Mr A Beck for the Practitioner
Ms Lagolago faces disciplinary charges brought by the Standards Committee arising from her representation of Mr and Mrs F in relation to a debt to a finance company.
The charges relate, inter alia, to the standard of her advice to the client on settlement proposals offered, the likelihood of success and risks in litigation with the finance company and her conduct of the resulting case in the District Court before Judge Tuohy, who was strongly critical of Ms Lagolago's representation and conduct in both his decisions on the merits and a later costs application.
The outcome for Mr and Mrs F was that a debt not exceeding $12,000, capable of being resolved in the Disputes Tribunal without legal fees was escalated into a two-day hearing in the District Court where the outcome was judgment for the balance of the loan contract and interest and where costs were awarded against them exceeding $45,000 (of a total of $75,000 actually incurred by the plaintiffs).
The Standards Committee presented three alternative levels of charge to the Tribunal for consideration:
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1. Misconduct pursuant to s 7(1)(a)(i) Lawyers and Conveyancers Act 2006 (“ LCA”).
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2. Negligence or incompetence to such a degree as to reflect on her fitness to practice or to bring the profession into disrepute. 1
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3. Unsatisfactory conduct that is not so gross, wilful or reckless as to amount to misconduct pursuant to s 241(b) but that was conduct that fell short of the
standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. 2
They allege two areas of failing on Ms Lagolago's part:
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1. Inadequate advice as to “… prospects of success, the risk of the litigation and the potential value in settling the claim out of Court”;
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2. That her conduct of the Court case itself was “below an acceptable standard”.
In bringing the charges the Standards Committee acknowledged that no one failing alleged would necessarily invoke a disciplinary response. It is the cumulative effect of a number of errors which does so, in their submission.
The Standards Committee frankly acknowledged the degree of latitude which must, of necessity, be extended to litigation practice. It was contended that the overall conduct of the practitioner (with no suggestion of ill-intent) still went beyond any proper degree of such tolerance.
The issues to be determined are:
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1. Have the Standards Committee proved any or all of the 35 particulars to the relevant standard, that is, on the balance of probabilities? The charges and particulars are Appendix I of this decision.
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2. If so, is the conduct such as “… would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable” pursuant to s 7(1) a)(i) as pleaded by the Standards Committee?
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3. If not, is there negligence in Ms Lagolago's professional capacity “… of such a degree … as to reflect on (her) fitness to practice or as to bring (her) profession into disrepute”?
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4. If not, does the conduct either:
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(a) Fall “… short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer” 3; or
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(b) Represent “conduct consisting of a contravention of …” the LCA Regulations or Rules, but short of that which reaches the level of misconduct. 4
Evidence for the Standards Committee was given by the complainant Mrs F.
No expert evidence was called as to the appropriate standard required of a practitioner in the two categories where it is alleged she failed her client. The Standards Committee submitted that it was for the Tribunal to set such standards, relying on its own expertise as a Specialist Tribunal.
We have dealt with the matter on that basis, although comment that this is a case where some clear boundaries of acceptable and totally unacceptable advice and conduct could well have assisted the Tribunal, even having regard to the latitude to be extended to litigators, which will be more fully discussed later in this decision.
As to the complainant, unfortunately we did not consider her to be an entirely helpful witness. The consequences for her and her family of the outcome of the proceedings taken by the practitioner on her behalf were obviously devastating. However, we consider that the complainant has failed to accept any responsibility whatsoever on her part, for her insistence that the practitioner pursue the matter through litigation, rather than seriously considering the settlement offer made in June 2009.
We accept the practitioner's evidence, supported by evidence of the other practitioner who had represented the F's, Ms Lester, that Mrs F was utterly determined to have her day in Court.
On occasions, Mrs F denied receiving material which it became apparent subsequently she had received. She also denied sending a crucial email which recorded that the practitioner had advised her about the risks of costs should the litigation fail. 5 After allowing her time to read the email over an adjournment she changed her evidence to agree she had written: “We understand that if we lose we may have to pay $50K”.
Mrs F also admitted lying to the Judge at the hearing about the preparation of affidavits. 6 Her explanation for this was not persuasive.
When material was put to her which did not support the view that she was advancing, about the practitioner's lack of advice or communication with her, she repeatedly protested that there had been “so many letters”, that she was busy at work, stressed at home, that her “children were starving” and that she did not understand legal language. This included a letter early on in her resumed relationship with the practitioner, in October 2009 advising of the desirability of pursuing the matter through the Disputes Tribunal.
On another occasion she referred to the “letter of confirmation of instructions” which the practitioner had requested, as being signed under some pressure, saying that “the proceedings were underway”. In fact this letter was sent before the proceedings were filed.
She also appeared to assert that the practitioner had somehow deliberately issued proceedings which were doomed to failure, in the knowledge that her claim was unsustainable. In other words she appeared to be alleging a deliberate error on the part of Ms Lagolago.
It was clear from a spreadsheet Mrs F prepared in relation to payments and insurance rebates, that the witness was far more knowledgeable about financial transactions (having previously been employed as a head teller at a bank) than she was prepared to acknowledge. This appeared to be part of the pattern of shifting the entire responsibility for the disastrous outcome to the practitioner alone.
For her part, Ms Lagolago appeared to be somewhat confused about her role during the first few months of her engagement. In her affidavit responding to charges she “partly denies” having been instructed by the F's on 12 March 2009. 7 She confirms the letter of engagement was signed on 23 March but says:
“The agreement was that I was to proceed to file proceedings as soon as a substantial retainer of $3K to $4K was accumulated in the trust account for fees excluding disbursements such as for filing fees and hearing costs which they were to pay separately when required. I was to begin to review the file as soon as a substantial retainer of $1K was accumulated in the trust account paid at $200/wk in about a month's time. However Mr and Mrs F took more than 5 months to accumulate the first $1K, deliberately stalling (as Mrs F admitted in her voice message on 9 and 13 October 2009) and not before SRL filed Dispute Tribunal proceedings.”
In her evidence she prevaricated in answering and appeared genuinely vague and confused about her obligations in June 2009 when the F's received a settlement offer. This offer, to settle for a total payment of $6,678.13 in full and final settlement, was, objectively, the best possible route out of the F's situation. The practitioner's conduct around this offer is the focus of the first limb of the conduct under scrutiny.
Ms Lagolago says that she advised the clients to accept or seriously consider this offer. However she allowed herself to be deterred in the strength of her advice by their protestations of inability to pay. 8 She...
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