Unsatisfactory conduct: Lawyer to compensate client after missing filing deadline
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 783, 21 October 2011.
A Lawyers Standards Committee censured a lawyer and ordered him to compensate his former client for her additional legal costs after he missed deadlines for filing court proceedings and for not taking other steps necessary to progress the client’s claim.
The client complained that after she had instructed him to act for her in a Family Protection Act claim, the lawyer had overlooked the time for filing the proceedings and for giving notices under the Property (Relationships) Act 1976. She then hired a new lawyer to apply for permission to file out of time and to apply for the court to set aside the option she was deemed to have taken under the Property (Relationships) Act by not giving the relevant notices.
The lawyer accepted responsibility for failing to meet the deadlines. He was found guilty of unsatisfactory conduct and was censured. The committee found he had breached his obligation under the Lawyers Conduct and Client Care Rules to act competently and in a timely manner consistent with the terms of his retainer and with the duty to take reasonable care (Rule 3).
The committee also ordered the lawyer to take advice on managing his practice from a named lawyer, and to undergo practical training or education on family protection and relationship property proceedings.
The client sought to recover her costs up to and including the point where the other side agreed to settle both the time extensions and the substantive claim. This amounted to $4,474.69, out of a total legal bill of $5,197.50 (excluding disbursements and GST). The committee said it was apparent the client had brought the complaint as an alternative to litigation to recover her additional costs, rather than for disciplinary purposes.
The lawyer accepted he should meet the costs the client had incurred in obtaining the right to bring a claim out of time, but he argued he should not be liable for the cost of substantive work involved in filing her claim, as this would have been necessary regardless of his error. The committee agreed with the lawyer, ordering him to pay the client compensation of $2,700 plus GST.
The client also claimed her legal costs in making the complaint. The committee rejected this, on the basis that the lawyer had made a reasonable offer to settle the matter with her.