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Fined for delay and not receipting money

08 December 2014

A lawyers standards committee has censured and fined a barrister, C, $1,500 for failing to act promptly and for accepting payment in cash, rather than the payment being made into the instructing solicitor’s trust account.

C acted for Mrs D in two matters arising out of the death of her son. One matter was a Coroner’s inquest, and the other was an investigation by the Health and Disability Commissioner. Mrs D had no complaint about C’s conduct before or during the Coroner’s inquest, but she did complain about matters which arose following the inquest.

A Health and Disability Commissioner enquiry into the death of Mrs D’s son had been put on hold while the Coroner made enquiries. C assisted Mrs D to reactivate the investigation. He acted pro bono to help the family, who he felt had been left asking for explanations and an acknowledgement by a District Health Board (DHB) of some kind of remorse regarding the breakdown of treatment for Mrs D’s son.

However, C failed to send the letter asking the DHB questions for a considerable time. C realised his failure, which was due to a mistaken belief on his part that he had sent the letter already, and C readily acknowledged that this delay was unsatisfactory.

Mrs D had said in her complaint to the Law Society that even though the services were provided pro bono, she was entitled to expect the work to be carried out to a professional standard. The standards committee agreed and found that C’s delay in sending the letter was unsatisfactory conduct. Mrs D had paid C $3,000 in advance of any invoice being rendered in cash for fees relating to the Coroner’s Court appearances. C said he believed he had given Mrs D a receipt.

The standards committee noted that because C was a barrister, Rule 14.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 applied. This rule provides that a barrister must not “receive or hold money or other valuable property for or on behalf of another person”. All monies received by C therefore ought to have been receipted through his instructing solicitor’s trust account.

The standards committee did not receive any response to several requests to C for clarification of his actions. Consequently the committee found that C was in breach of Rule 14(2). The standards committee found this was unsatisfactory conduct.

The standards committee also considered whether C had supplied Mrs D with a letter of engagement and client care. C said his routine practice was to supply such a letter and he had a copy of the letter he said had been sent to the client. Mrs D, however, said she had not received it.

The committee noted that there were other possible explanations why Mrs D had not received a client care letter. It found there was insufficient evidence to make a finding on this and decided to take no further action.

As well as the censure and fine, the committee ordered C to give Mrs D a written apology and to pay $1,500 costs.

Last updated on the 3rd June 2015