New Zealand Law Society - Counter complaint showed lack of insight

Counter complaint showed lack of insight

Published on 10 May 2019

[All names used in this article are fictitious]

A lawyer who made a “counter complaint” appeared to demonstrate a lack of insight into his own professional conduct and the role of the Lawyers Complaints Service, a lawyers standards committee said.

The counter complaint was made on behalf of Langdale about another lawyer, Sowerberry, in relation to an undertaking.

Langdale acted for the vendor of a café business while Sowerberry acted for the buyer.

On settlement day, Langdale sent a fax to Sowerberry’s firm. The fax included an undertaking to provide the original or certified copies of the deed of assignment of lease to Sowerberry’s firm after settlement date. However, at the time of giving the undertaking, Langdale did not hold a fully signed deed of assignment of lease (the deed was not fully executed).

When the deed was not handed over at settlement, Sowerberry sought an explanation from Langdale. When no explanation was forthcoming, Sowerberry made a complaint about Langdale.

Three weeks before the release of the committee’s decision on Sowerberry’s complaint, Langdale made a counter complaint about Sowerberry in relation to the same transaction. Langdale complained that Sowerberry had breached his undertaking by failing to pay the rent shortfall of $400.

Sowerberry responded to the complaint and noted that he did undertake to pay the shortfall to Langdale “upon receipt of the sum from his client”.

To date, the client has not paid Sowerberry the money, and accordingly he has not paid the money to Langdale. As such, Sowerberry maintained that he is not in breach and that should he subsequently receive the sum from his client, he will pay it to Langdale in accordance with the undertaking.

The committee said that in its mind “it was clear that the undertaking was to be conditional on receipt of the funds from the client, and therefore no breach had occurred”.

“Furthermore, [Sowerberry] appeared to have taken all reasonable steps to try and get his client to pay, including sending five emails and making two phone calls.”

Accordingly, the committee decided to take no further action on the counter complaint made on Langdale’s behalf about [Sowerberry].

The committee also noted that the “appropriate forum to recover the outstanding $400 is the Disputes Tribunal and wished to emphasise that the Lawyers Complaints Service was not the appropriate medium for such a dispute”.

The committee noted that the counter complaint appeared to be a reaction to Sowerberry making a complaint about Langdale in relation to the same transaction.

“The committee was concerned that [Langdale]’s actions showed a fundamental lack of understanding of lawyers’ undertakings, and was concerned that Langdale’s response had not been to accept the outcome of [Sowerberry]’s complaint about him, but rather to counter with a complaint about the lawyer who had complained about him.

“These actions appear to demonstrate a lack of insight into his own professional conduct and the role of the Lawyers Complaints Service,” the committee said.