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Unorthodox case management was unsatisfactory conduct

A lawyers standards committee has found a barrister, A, guilty of unsatisfactory conduct in relation to the preparation for and conduct of Family Court litigation.

The committee also found A guilty of unsatisfactory conduct in relation to the fee invoiced, and ordered that A reduce the fee from $42,575 to $10,000.

A acted for the complainant, Ms B, on relationship property matters from October 2009 to September 2010.

Ms B and her husband married in 2000 and separated in 2008. It appeared their principal assets were a family home, boat, chattels and other miscellaneous items with a total value of about $1 million. However the parties’ overall equity was about $400,000.

A advised Ms B verbally that it would be appropriate to bring an action under s18A of the Property (Relationships) Act 1976 (PRA). This section deals with whether conduct of one party was so gross and palpable that it significantly affected the value of relationship property.

An important aspect of this case, the committee noted, related to the way A operated his practice. He was based in an isolated area and “frankly admits” that when acting for clients, he used their resources to undertake some of the required tasks.

“He also frankly admits that in his view [Ms B] was an intelligent and capable woman, who he felt could entrust responsibility for preparation of affidavits to be filed in proceedings. He also provided her with a copy of the PRA.”

Ms B had to use her own office stationery, computer and printer, because A had limited access to office equipment. She also had to draft her own affidavits.

Despite negotiations between the parties, the proceedings did not settle.

The “unorthodox manner” in which A managed the case reached a “critical nadir” at a Family Court hearing, the standards committee said.

The judge commented about late filing of affidavits and that “procedurally the matter seemed to be somewhat in disarray”.

The judge found that the application had failed decisively, particularly noting:

the lack of a proper evidential basis to suggest there was gross and palpable conduct. The judge, in particular, referred to being “surprised” that A did not cross-examine the husband on the allegations regarding his conduct; and

the lack of any evidence to suggest that such conduct, even if proven, had significantly affected the value of relationship property.

The committee noted that the proceedings were eventually settled by negotiation after A’s retainer had been terminated.

Ms B complained to the Law Society, alleging that A had failed to provide adequate legal advice, provide appropriate services and failed to act competently in accordance with instructions. These issues, the committee said, were “inextricably entwined” with the complaint that A failed to charge a fair and reasonable fee and failed to let Ms B know how and when she would be billed.

The committee noted that it was not uncommon for a lawyer to seek their client’s assistance in providing information, printing correspondence, making amendments to documents the lawyer has prepared and generally working collaboratively with the lawyer to present the best possible case to the court.

However it found “by a wide margin” that the manner in which A dealt with Ms B was not part of the usual and appropriate collaborative approach of clients working with solicitors to present their case.

“In isolation, using [Ms B]’s clerical resources would not have met the threshold of unsatisfactory conduct, but when allied with [A] providing [Ms B] with a copy of the PRA (to presumably analyse the legal issues) and then actually drafting her own affidavits, the committee is satisfied that this raises professional standards issues.”

The committee also said there appeared to be a lack of objectivity and proper consideration as to whether the s18A application had any realistic prospect of success.

The committee found that there was inadequate evidence presented concerning the allegations against the husband.

“Further, with the greatest respect to [A], the decision not to cross-examine the husband and submitting that the husband should be bound by an ‘evasive denial’ in an affidavit as a pleading point was unfortunate. The committee notes s92 of the Evidence Act 2006 that states: ‘in any proceeding, a party must cross-examine a witness on significant matters that are relevant in an issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters’.

“In the committee’s view [A] failed to properly appreciate the difference between pleadings and evidential issues in this context.

“Further to this, there was a complete failure to establish the nexus between the conduct even if that was proven, and the significant effect on the value of relationship property.”

Standing back and considering the composite factors, the committee said it found unsatisfactory conduct in respect of Ms B’s complaints about the service and representation provided.

There was no evidence, the committee said, that the fee A rendered was reduced in any way because Ms B had, to a significant extent, carried out tasks herself, or that was any part of a fee arrangement.

The committee found that A rendered a “full fee” for his involvement, but that his own involvement was much less prominent given Ms B’s own efforts in putting her case together to go before the court.

“In the circumstances, the committee was of the view that the fee charged by [A] was not fair and reasonable and in breach of Rule 9 of the client care rules.”

The committee found no basis for Ms B’s complaint that A had colluded with opposing counsel. Ms B had also raised concern about the taking of relationship property in lieu of or as security for fees. The committee said this was “unorthodox” but was ultimately a matter to be resolved between A and Ms B and did not raise professional standards issues.

As well as the order to reduce his fee, A was ordered to pay the Law Society $1,000 costs.

Last updated on the 3rd June 2015