Wolverhampton v Shaftesbury

 
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[2010] NZLCRO 23

LEGAL COMPLAINTS REVIEW OFFICER, AUCKLAND

LCRO 145/09

Concerning An application for review pursuant to Section 193 of the Lawyers and Conveyancers Act 2006

and

Concerning a determination of the Auckland Standards Committee 3

BETWEEN
Ms Wolverhampton Of Auckland
Applicant
and
Mr Shaftesbury Of Auckland
Respondent

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

Application for review of a Standards Committee determination. Applicant complained to the NZ Law Society that the Practitioner had lost/mislaid a contracting out agreement and had falsely blamed her for its disappearance. Though the agreement did turn up there was disagreement as to how. The Standards Committee resolved to take no further action after the agreement was found and the Applicant was unwilling to provide a full copy of the original — whether the Practitioner had discharged his professional obligation to the Applicant.

Held:

The date of the commencement of the de facto relationship between W and S was clearly amended on the Agreement. There was no serious challenge to the amendment having been done in S's handwriting. S and W both initialled the change in the left and right margins but the Practitioner's initials were only in the left margin. The Practitioner submitted that this showed the amendment was made in two stages and he would have released the fully signed documents to W for S's correction and signature but not for the purposes of retention. However it was unlikely that a lawyer would bear witness in a document to a correction yet to be made. To do so would be highly risky. It was more likely that S's amendment and initials were already on the document when the Practitioner initialled it on a return visit by W.

Also unlikely was that a lawyer would agree to a client taking away original documents that were almost fully executed without recording the fact of the client having taken them and taking a photocopy. If events had occurred as the Practitioner described there should have been evidence of follow-up by the Practitioner concerning the Agreement and there wasn't. The Practitioner had legal responsibilities to conclude his own instructions and to account to S's lawyer for his client's copy of the Agreement and there was no record of any kind about the documents after they were signed. Little clarification was offered by the Practitioner's own records, and his diary could not be considered a reliable indicator of W's attendance/s at the Practitioner's office.

For all these reasons it was reasonable to conclude that the last known location of the Agreement was at the Practitioner's office. The onus was on the Practitioner to show that he had discharged his professional obligations to W and he had failed to do this. The Practitioner failed to meet the standard of conduct required of a competent and responsible practitioner, and this failing amounted to conduct unbecoming and could have led to disciplinary proceedings against him under the Law Practitioners Act 1982 as the conduct occurred prior to 2008. His conduct also met the statutory threshold of s351 Lawyers and Conveyancers Act 2006 (“LCA”) (complaints about conduct before commencement of section) for a finding of unsatisfactory conduct pursuant to s12 LCA (unsatisfactory conduct defined in relation to lawyers). Application for review upheld. Practitioner censured and ordered to pay $1,942 compensation and $2,000 in costs.

DECISION
Application for review
1

On 24 April 2009 Mrs Wolverhampton (the Applicant) complained to the New Zealand law Society that Mr Shaftesbury (the Practitioner) had (a) lost or mislaid a Contracting Out Agreement that he had prepared for her in 2002, and (b) falsely blamed her for its disappearance. Her complaint set out events that had occurred in 2004 when she had contacted the Practitioner's office seeking a copy of it, that it could not then be located, and that she provided a photocopy of the “half-signed” agreement (i.e. containing only the signatures of her partner and his lawyer).

2

The complaint was notified to the Practitioner who responded on 3 June 2009, denying the allegation, and alleging that the Applicant was being “deliberately misleading in virtually all material respects”. He informed the Standards Committee that the document was last known to be in the possession of the Applicant. He enclosed a copy of a letter sent by his firm in September 2004 to the lawyer who had acted for her (former) partner, S, in response to an enquiry by that firm which recorded the firm's advice that the Applicant had acknowledged holding both copies and would give one to her partner that day.

3

On 9 June 2009 the Applicant informed the Standards Committee that she had found the Agreement (one original) in her letter box. She said it had not been posted nor had it been placed in an envelope. The Standards Committee informed the Practitioner accordingly.

4

The Practitioner wrote again to the Standards Committee on 15 June 2009 challenging the truthfulness of the Applicant's claim that she did not know how the document came to be in her letter box. He contended that she had found the document among her papers and had herself placed it there. He reiterated his earlier stance that the Applicant had the document all along. He sought confirmation that this was the end of the complaint. The letter was sent on to the Applicant. In several further communications with the Standards Committee the Applicant and the Practitioner forwarded further information and submissions, each contesting what the other had written. The Applicant sought compensation from the Practitioner for legal costs she had incurred in trying to assemble evidence of the Agreement's existence, prior to it being found.

5

The Standards Committee asked the Applicant to provide a copy of the Agreement she had found in her letter box so that the date on which it was shown to have been signed could be matched to the date that the Practitioner advised that the mortgages had been signed. The Applicant was unwilling to provide the full copy of the Agreement. In these circumstances the Standards Committee did not pursue the complaint further and issued its determination declining to uphold the complaint, citing, as reasons, that the Agreement had been found and the Applicant's unwillingness to provide a full copy of the original document. The Committee resolved pursuant to section 138(2) of the Lawyers and Conveyancers Act 2006 to take no further action.

Review application
6

The review application related to both the original complaint, but also to the Applicant's discovery of the original document in her letter box. Although she was initially uncertain about who might have put it there, the substance of the Applicant's contention was that the Practitioner was last known to be in possession of the original documents. She disagreed with the Committee's decision that no further action was necessary because she was significantly out of pocket due to legal costs incurred prior to the document turning up.

Procedure
7

This review commenced with a hearing on 27 October 2009 attended only by the Applicant, which is a first step enquiry where the information provided appears to the Legal Review Complaints Officer to be insufficient to show that there is a case for a Practitioner to answer. It became apparent in the course of that hearing that the evidence of the parties was in conflict on almost every issue and with respect to almost every detail. In these circumstances it appeared appropriate to hear from the Practitioner and I wrote to the parties on 29 October 2009 referring to “disputed evidence which gives rise to issues of credibility”. The parties were invited to consider the possibility of mediation but this was declined and a substantive hearing was then arranged.

8

I heard from both the Applicant and the Practitioner at a substantive hearing on 13 January 2010. After that hearing the Applicant was asked to provide some further information relating to evidence she had provided at the hearing, and thereafter I arranged for a further meeting with the Practitioner only, to clarify some parts of his earlier evidence and also to give him an opportunity to respond to further information provided by the Applicant. Some further exchanges of information followed. The Practitioner has received a copy of all information forwarded by the Applicant and has had the opportunity to comment.

9

I mention at this point that at the hearing the Applicant confirmed her reluctance to produce the original Agreement. The reasons were not altogether clear but were understood to relate to current court proceedings which she considered could be compromised by making the document available. Her particular concern surrounded the date that the Agreement was shown to have been signed, which she claimed was incorrect and bore no relationship to the actual date of signing. She had nevertheless provided a photocopy of the front and back pages of the Agreement (but excluding the top of the front page showing the signing date) and this was provided to the Practitioner. The Applicant was willing to allow me to view the original document found in her letterbox but I declined to receive any evidence that could not be placed before the Practitioner, and the Applicant was informed accordingly. I need also mention the Practitioner was equally reluctant to disclose the actual date that the Applicant attended his office to sign the Agreement, also for reasons which were not clear.

Jurisdiction
10

I record that the Practitioner raised two grounds for challenging the...

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