Unsatisfactory conduct: Clients must be consulted on all significant decisions
This is a summary of a decision by a Lawyers Standards Committee under the Lawyers and Conveyancers Act 2006.
An Auckland lawyer, Christopher Comeskey, was fined and reprimanded after withdrawing several pre-trial applications without taking instructions from his client. In a separate breach of the Conduct and Client Care Rules, the lawyer had also arranged a trial date knowing it would clash with his scheduled appearance on disciplinary charges, leading him to withdraw shortly before the trial.
On 17 May 2010, the scheduled start date for the client’s criminal trial, she asked Mr Comeskey to act for her. The following day he obtained an adjournment and a new trial date of 5 July 2010.
When he received the client’s file from her former lawyer, Mr Comeskey decided that a number of pre-trial applications that had been made were without merit, and he withdrew them. On 16 June the remaining pre-trial applications were heard and dismissed. In a letter to the client the following day, he reported on this and on his decision to withdrew several of the applications.
On 28 June, one week before the new trial date, Mr Comeskey withdrew as counsel. He was due to face charges before the Lawyers and Conveyancers Disciplinary Tribunal on the same date, but he had been aware of this clash when he agreed to the trial date.
The Lawyers Standards Committee found that the lawyer had breached the Conduct and Client Care Rules by withdrawing the pre-trial applications without consulting and taking instructions from the client on this beforehand. It described this as “contumelious” conduct. The Rules state:
“Subject to the lawyer’s overriding duty to the court, a lawyer must obtain and follow a client’s instructions on significant decisions in respect of the conduct of litigation. Those instructions should be taken after the client is informed by the lawyer of the nature of the decisions to be made and the consequences of them.” (Rule 13.3)
The standards committee also said the lawyer should not have arranged for his client’s trial to begin on the same day as his disciplinary hearing. He should also have told her when he had taken on the retainer that he might be unable to act for her at the trial, although he did not need to disclose the reason, namely, the disciplinary charges. The standards committee found that the lawyer had breached Rule 7.1, which provides:
“A lawyer must take reasonable steps to ensure that a client understands the nature of the retainer and must keep the client informed about progress on the retainer. A lawyer must also consult the client (not being another lawyer acting in a professional capacity) about the steps to be taken to implement the client’s instructions.”
As a result of the two breaches of the Rules, the standards committee found Mr Comeskey guilty of unsatisfactory conduct. It reprimanded him and fined him $2,500. It also ordered him to pay $1,200 in costs to the New Zealand Law Society.