Unsatisfactory conduct. Delay in distribution of estate
This is a summary of a decision by a Lawyers Standards Committee under the Lawyers and Conveyancers Act 2006. This summary was published in LawTalk 743.
A lawyer who delayed distributing an estate, and then attempted to make the distribution conditional on a complaint being withdrawn, was found guilty of unsatisfactory conduct. The lawyer was ordered to compensate the complainant (one of the beneficiaries) for legal costs resulting from the delay, and to pay costs to the New Zealand Law Society.
The beneficiary had complained that the lawyer, acting as executor and trustee for the estate, had been guilty of continuing delays and inadequate communication with the beneficiaries.
The house that was the main property of the estate was not sold until nearly two years after the death of the deceased, and 19 months after probate. The Standards Committee accepted the lawyer’s explanation that this delay was not of the lawyer’s making.
However, the lawyer had then failed to distribute the estate in a timely way, taking no action until a further five months had passed. By then one of the beneficiaries had complained to the Law Society.
The lawyer drafted a deed of release for the complainant and the other beneficiaries to sign, including a clause stating that the complainant withdrew the complaint. The complainant refused to sign the deed. The estate was finally distributed several weeks later, six months after the sale of the main property.
The Standards Committee found that the lawyer’s delay in distributing the estate, along with her attempt to make the distribution conditional on the complaint being withdrawn, was unacceptable when measured against the standards of “competent, ethical and responsible practitioners” (B v Medical Council [2005] 3 NZLR 810 at 811). It decided, under s152(2)(b) of the Lawyers and Conveyancers Act 2006, that the lawyer was guilty of unsatisfactory conduct.
The complainant had incurred roughly $2,000 in legal costs, caused partly by the lawyer’s delay and partly by the legal advice she was given. The Standards Committee decided it would be fair and reasonable for the lawyer to pay the complainant $1,200 in compensation. The committee also ordered the lawyer to pay costs of $800 to the Law Society.