Unsatisfactory conduct: Failure to appear at client’s remand hearing
This is a summary of a decision by a Lawyers Standards Committee under the Lawyers and Conveyancers Act 2006. This summary was published in LawTalk 770, 22 April 2011.
A lawyer who failed to appear at his client’s remand hearing was censured and ordered to pay costs.
The lawyer had met with the complainant in prison, obtained disclosure documents from the Police, and appeared for her at an earlier remand hearing on 9 February 2011. The complainant said she understood the lawyer would appear for her again to apply for bail when her case was next called. However, he failed to appear at her next remand hearing on 12 February, nor did he get anyone else to appear for her.
The lawyer told the Standards Committee the court had not been able to hear a bail application at the 9 February hearing, but he had made no commitment to the complainant to apply for bail at the next or any later hearing. On 4 March he had informed her he would not represent her at trial.
The Committee noted that the lawyer, having appeared for the complainant, was counsel on the record for her. Taking into account also that he had met or spoken with her several times and taken other steps in her case, the committee found that the complainant was entitled to assume he was acting for her, until he told her otherwise. He therefore had an obligation to ensure she was represented when she next appeared.
The Committee cited T v G (29/2009), where the Legal Complaints Review Officer said: “The question is whether a reasonable person observing the conduct of both Lawyer G and Client T would conclude that the parties intended [a] lawyer-client relationship to subsist between them Day v Mead [1987] 2 NZLR 443, 458.”
The complainant also claimed the lawyer had not responded to messages left on his answerphone by her and by prison officers on her behalf between 20 January and 25 February. The Standards Committee said the lawyer may have believed that, given he had not accepted a brief for the trial, he had no obligation to respond to the complainant. However, the Committee reiterated its finding that a lawyer-client relationship had existed and said that the lawyer had breached Rule 3.2 of the Conduct and Client Care Rules, which required him to respond to clients in a timely manner.
The Committee found the lawyer guilty of unsatisfactory conduct, censured him, and ordered him to pay $500 in costs to the New Zealand Law Society.