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Barrister who did little on client's behalf fined

13 May 2015

A lawyers standards committee has fined a barrister, D, $6,000 and ordered him to repay a client $33,033.75 of the $34,500 she paid him after D “appears to have done little on the complainant’s behalf”.

In September 2010, the investigating arm of Work and Income New Zealand (WINZ) contacted Ms L to say she had wrongly claimed an accommodation allowance and she would be charged with benefit fraud.

Ms L contacted D for advice. D sought an upfront fee of $30,000 plus GST, and she paid the $34,500. After receipting the funds, D advised Ms L he would not be assisting her as he was too expensive and she would be assisted by Mr C (a non-lawyer employee).

Ms L said that D introduced Mr C as an expert in WINZ matters, and did so without her consent.

The prosecution did not materialise. In January 2011, WINZ wrote to Ms L saying they were not going to charge her and had made an error about fraud. However, Ms L was required to repay $27,000.

Ms L said that Work and Income made this decision on their own, without any input from D or Mr C.

Ms L said that between January 2011 and September 2011 there were two short meetings with D. At the first meeting, she complained about Mr C not doing anything.

She subsequently made an appointment with WINZ and, after attending an interview, her benefit was reinstated in September 2011. In her view, it would not have been cut off at all if she had dealt with the matter herself a year earlier, but she had been advised by D and Mr C not to do so.

D did not respond to the standards committee’s notice that it had received the complaint.

Because D did not provide his file to the standards committee, the committee could not consider any time records, but the committee said that on any view the fee was excessive. Allowing for some work to have been done, the committee found a reasonable fee would be $1,275 plus GST.

The committee found that no client care letter was provided, in breach of Rules 3.4 and 3.5 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC).

The committee said that without the file it was not possible to determine whether the delegation to Mr C was appropriate, since the nature of his assistance was unknown. While noting that it would generally not be proper to delegate in this manner, the committee took no further action on this part of the complaint.

There was no evidence that D had paid the money into a trust account, and this breached Rule 9.3 of the RCCC, and s 110 of the Lawyers and Conveyancers Act 2006 (LCA).

The absence of the file again prevented the committee from determining whether the work done was competent. Despite this, the committee found there were serious deficiencies with D’s timeliness. As a result, the committee found that D had breached Rule 3.

These breaches were unsatisfactory conduct, the committee found.

D’s failure to comply with the committee’s notice under s 147(2) of the LCA to provide copies of invoices, receipts and other information, the committee said, indicated that there may have been unsatisfactory conduct or misconduct. As a result the standards committee resolved to commence a separate own motion investigation into that.

D was also ordered to pay $1,500 costs.

Last updated on the 17th August 2015