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Claiming lien over passports unsatisfactory conduct

05 April 2019

[Names used in this summary are fictitious]

If a lawyer is prohibited from retaining the passport of a New Zealand citizen on the basis of an unpaid fee, a foreign client should be treated no differently.

This was stated by a lawyers standards committee when considering an own motion investigation into a lawyer, Orlick, who claimed a lien over his client’s passports and the passports of his children.

The matter arose when the standards committee was considering a complaint made by a former client of Orlick.

The client had engaged Orlick to work on immigration matters. During the course of the work, the client provided Orlick with his passport and the passports of his children.

When the client failed to settle Orlick’s fees, Orlick claimed a lien over the client’s file, including the passports.

The standards committee noted at the outset that the Passports Act 1992 prohibits liens over New Zealand passports.

The committee began by examining the law relating to liens over foreign passports and was satisfied there was no clear legal authority in New Zealand addressing the issue.

Orlick submitted that in the absence of specific legal authority prohibiting liens over foreign passports, solicitors were entitled to assert such liens. He contended that Parliament expressly omitted foreign passports from the Passports Act 1992 as it intended to allow liens over foreign passports.

The committee said it did not accept Orlick’s interpretation. It considered the lack of relevant law in New Zealand did not amount to an endorsement of the practice Orlick had adopted in this case.

“It is unlikely that this right to assert a lien over a client’s file would extend to documents which do not belong to a client, such as a passport, which arguably remains the property of the country of issue.”

In coming to this view, the committee noted the comments of the High Court in Vallant Hooker & Partners v Proceedings Commissioner [2001] 2 NZLR 357, where the court expressed doubts that a solicitor’s lien could be properly asserted over any passport, as they are not the property of the client. The committee said it was satisfied “that it was inappropriate to treat the holder of a foreign passport as having subordinate rights to a New Zealand passport holder with regards to liens”.

As well as holding the client’s passport, Orlick also held the passports of the client’s children “which was clearly inappropriate.”

“The children’s passports were not the property of his client and were not provided to [Orlick] as security for his client’s fees.”

The committee found unsatisfactory conduct by Orlick, censured him, fined him $2,000 and ordered him to pay $1,000 costs.

On review, the Legal Complaints Review Officer upheld the determinations of the standards committee in LCRO 150/2016.

“In the circumstances where there was no clear legal authority, and when assessing what lawyers of good standing would find to be acceptable, or what constituted unprofessional conduct, it was reasonable for the committee to take note of what the law in New Zealand provided, both by way of statute and the (albeit obiter) comments made by the court.

“These are valid evidential sources of what would be considered to be acceptable, and professional, conduct of lawyers in New Zealand,” the LCRO said.

In holding the passports, Orlick had affected the rights of his client and his client’s children. “That is unacceptable conduct,” the LCRO said.

The LCRO considered it was important that the legal profession and the public be made aware of the issue addressed in this case.

Last updated on the 5th April 2019