Unsatisfactory conduct. Failure to respond to client
This is a summary of a decision made by a Lawyers Standards Committee under the Lawyers and Conveyancers Act 2006. This summary was published in LawTalk 748.
A Standards Committee reprimanded and ordered costs against a lawyer for failing for several months to respond to a client involved in an employment dispute.
The client had originally instructed the lawyer around April 2008 in relation to a potential dispute with one of the client’s employees. The lawyer provided advice and her bill was paid. At the beginning of September, however, the anticipated dispute materialised when the employee brought a personal grievance, and the client contacted the lawyer again.
The lawyer responded with advice the following day. After that, however, the lawyer failed to respond to emails and numerous phone calls from September through to January 2009. The client finally obtained a different lawyer and reached a mediated settlement with the employee.
The lawyer acknowledged to the Standards Committee that she had failed to respond to the client’s emails and calls, and she apologised to the client. The Standards Committee found her guilty of unsatisfactory conduct, reprimanded her, and ordered her to pay $500 in costs to the New Zealand Law Society.
The client had also claimed $2,000 for the cost of settling the personal grievance, as well as an unspecified amount in legal fees. However, the Standards Committee decided not to make any compensation order. The Standards Committee said it was not satisfied that any loss was suffered as a result of the lawyer’s unsatisfactory conduct, as the client had agreed at mediation with the former employee to pay the amount to settle the case. The Standards Committee also took into account various other factors, including that the lawyer had acknowledged that her performance was unsatisfactory and had apologised, and that her behaviour was at the lower end of the scale of unsatisfactory conduct.
The client appealed the refusal to order compensation to the Legal Complaints Review Officer (LCRO). The LCRO agreed with the Standards Committee that the client had not shown that the lawyer’s conduct had caused the client loss: there was no evidence that, had the lawyer acted diligently, the client would not have had to settle the employment grievance and incur legal costs in doing so.
However, the LCRO had reservations about the relevance of some of the other factors the Standards Committee considered. The LCRO said that a central purpose of the Lawyers and Conveyancers Act 2006 is to protect clients, and there is therefore a strong policy reason to provide compensation when a client suffers loss because of a lawyer’s unsatisfactory conduct. Some further factors may be relevant, such as contributing conduct by the client, or the client taking mitigating steps to reduce the loss. But wider matters such as an apology and the seriousness of the wrongdoing must be of limited relevance, if any at all.
The LCRO agreed with the Standards Committee’s finding that it had no jurisdiction to order the lawyer to refund any of the fees for the earlier legal work from April 2008. Under the 2006 Act, a Standards Committee can only order a refund of fees for work that is the subject of the complaint before it. If, however, a client had to incur legal fees as a result of a lawyer’s failure, those fees could be treated as a loss for which compensation could be ordered.