Unsatisfactory conduct. Failure to respond to client
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 761, 1 November 2010.
A Christchurch lawyer, Wayne Kerr, was censured and fined after failing to respond to a client for several months after their first meeting. Mr Kerr maintained he had never agreed to be her lawyer, but the Lawyers Standards Committee said the duty lay on him to make this clear to the client, who clearly believed he was acting for her.
The client met with Mr Kerr in October 2009 about a personal grievance she had laid against her employer. After this, their first and only meeting, the client sent Mr Kerr numerous messages and emails seeking a reply from him. She told him that personal grievances laid by fellow employees had gone to mediation, and asked him whether he had heard back from her employer.
After not hearing from Mr Kerr for three or four months, the client engaged another lawyer and asked Mr Kerr for her file. This he returned to her, with a brief note of apology for the delay. The client laid a complaint, seeking compensation and an apology.
Mr Kerr told the Standards Committee he had not agreed to act for the complainant; rather he had asked her for more information, telling her he would get back to her after he received it. However, he acknowledged to the committee that she had then sent him this information. Mr Kerr suggested that some time after the first meeting he had been informed there was a class action with other employees and therefore he saw no need to proceed, as other lawyers were involved. He had also been ill for a period.
The Standards Committee was satisfied that Mr Kerr had held out to the complainant that he was prepared to act for her. Having reviewed material for her and agreed to meet, the duty lay with him to be clear as to whether he would represent her. The complainant’s subsequent enquiries, asking him to confirm that he had taken certain steps on her behalf, indicated clearly that she understood he had agreed to act for her. At no stage did Mr Kerr reply to say this was not the case.
The Standards Committee found that Mr Kerr’s failure to respond until the complainant was forced to engage another lawyer amounted to unsatisfactory conduct. It censured him, fined him $500, and ordered him to pay $500 in costs to the New Zealand Law Society. It did not order compensation, as there was no indication the complainant had suffered loss as a result of the delay.