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Published on 8 March 2019
[All names used in this article are fictitious.]
Two lawyers who overcharged a client have been fined $2,000 and ordered to reduce their fees by a lawyers standards committee.
The client, Ms Quilp, had separated from her former partner. When her former partner learned that Ms Quilp had booked overseas travel for her and their children, he successfully applied to the Family Court for an order preventing the removal of the children from New Zealand.
Ms Quilp instructed a law firm, firm C, to make a without notice application to discharge the order and was assisted by two lawyers, Tiffey and Tisher.
Ms Quilp hoped that, by filing the application, she would be able to proceed with her travel plans. However, the Family Court declined to grant the application without notice and directed it should be heard on notice.
Tiffey and Tisher subsequently terminated the retainer with Ms Quilp. For reasons that were not clear to the committee, Tiffey and Tisher formed the view that Ms Quilp’s instructions placed them in a position of conflict with their obligations to the court.
The same day Tiffey and Tisher terminated the retainer, Ms Quilp instructed new counsel Mr Cheeryble, who advised Tiffey and Tisher that he now acted for Ms Quilp.
A directions conference relating to Ms Quilp’s application was set down for three days after Tiffey and Tisher terminated the retainer. However, Tiffey and Tisher considered it was necessary for Tisher to attend the directions conference, on the basis that they had not yet been served a copy of the change of representation notice (this was subsequently received later that afternoon).
Ms Quilp complained to the Lawyers Complaints Service about the quantum of fees charged, saying she was particularly concerned that Tiffey and Tisher sought to invoice her for attendances made after the termination of the retainer.
That committee said that if Tisher insisted on attending court to file the notice of representation in fulfillment of his professional obligations as an officer of the court, then that “should have been at no cost to Ms [Quilp]”.
The committee concluded that “from the time they terminated the retainer with Ms [Quilp], the practitioners were quite simply not entitled to incur any more fees on Ms [Quilp]’s behalf, whether that be for discharging their own professional obligations or for any other matter.”
In seeking to charge Ms Quilp for attendances which took place after the termination of the retainer, Tiffey and Tisher had breached their obligation under rule 9 of the Lawyers and Conveyances Act (Lawyers: Conduct and Client Care) Rules 2008 to charge only a fee that was fair and reasonable.
That amounted to unsatisfactory conduct, the committee concluded.
In terms of the reasonableness of the final statement of account, the committee said it reached the conclusion that the fees charged were excessive and that this also amounted to unsatisfactory conduct. A fair and reasonable fee for the work undertaken up to and including the termination of the retainer would have been $5,000 exclusive of GST and disbursements.
The committee ordered Tiffey and Tisher to pay a total fine of $2,000, to reduce their final statement to $5,000 (excluding GST and disbursements), to refund Ms Quilp any money received from her above the $5,000 (excluding GST and disbursements), and to pay $1,000 costs to the New Zealand Law Society.