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Failed to comply with standards committee order

29 June 2018

[Names used in this article are fictitious]

A lawyer has been fined $1,500 for failing to comply with a lawyers standards committee order to reduce a fee he charged.

The committee determined that the failure to comply with the order was unsatisfactory conduct.

Ms Witherfield complained to the Lawyers Complaints Service about the fees that the lawyer, Jorkins, charged for administering her late mother’s estate.

Ms Witherfield was the estate’s administrator and Jorkins was instructed to act as solicitor for the estate. He charged fees of $22,754 plus GST for the estate administration. These were calculated by reference solely to a scale of charges based on the value of the estate.

Before the committee had made a determination, the parties resolved the fees dispute and made a confidential settlement agreement. Ms Witherfield then withdrew her complaint.

The committee, however, considered an important issue had been raised relating to Jorkins’s charging method and decided to continue dealing with the complaint.

A cost assessment was carried out and the cost assessor recommended that a fair and reasonable fee was $6,000 plus GST and disbursements.

The committee determined that Jorkins had breached rule 9 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 by charging fees that were unfair and unreasonable. The committee ordered Jorkins to reduce his fees to $6,000 plus GST and disbursements.

The New Zealand Law Society followed up the decision and asked Jorkins to confirm the fees had been reduced and that he had complied with the standards committee orders. Jorkins responded: “We confirm that monies were repaid in February 2015 and all matters have been settled”.

In May 2015 the Lawyers Complaints Service received an evaluation from Ms Witherfield, which said: “I am surprised and disappointed that [Jorkins] was not made to reduce his fee and give us a total refund”.

The committee then resolved to commence an own motion investigation pursuant to section 130(c) of the Lawyers and Conveyancers Act 2006, and advised Jorkins.

Jorkins responded, saying that any breach of the orders (which was denied) was unintentional. He had taken the view that the confidential settlement agreement was an end to his financial obligations to Ms Witherfield and that he was not required to further reduce his fee.

Because the committee was aware that a confidential settlement had been reached, it ought not to have made an order reducing the fee, he said. He also said that the private agreement took priority over the committee’s order, such that he was not required to comply with it.

“The committee was of the view that it would undermine the complaints process if a private settlement was able to take priority over a standards committee determination,” the committee said.

“There are public policy considerations to ensure that standards committee determinations are complied with. If any party is unhappy with a decision, then the proper course is to apply to the LCRO for review.”

As well as the $1,500 fine, the committee ordered Jorkins to pay $1,500 costs and reminded him of his obligation to certify that he has complied with all standards committee orders when renewing his practising certificate.

Last updated on the 29th June 2018