New Zealand Law Society - Unduly delayed file release

Unduly delayed file release

Published 4 October 2019

[All names used in this article are fictitious]

A lawyer who unduly delayed releasing files to a client’s new lawyer has been fined $1,000 by a lawyers standards committee.

The lawyer, Cleveland, had acted for Mr Hampshire’s family trust and in the preparation of a new will for Mr Hampshire.

However, on 5 November 2015 Mr Hampshire engaged a law firm (the firm) to represent both him and the trust. The firm sent Cleveland a signed request to uplift Mr Hampshire’s and the trust’s files and documents.

Some five days later Cleveland sent Mr Hampshire an invoice for taking will instructions and a statement of costs said to be outstanding from the trust. That was accompanied by advice that no files or documents would be released until all costs had been paid. Mr Hampshire settled his outstanding costs on 18 December 2015.

However, it was not until 5 February 2016 (by which time Mr Hampshire had complained of delay to the Lawyers Complaints Service) that Cleveland advised that the files had been available to uplift since the beginning of the working week.

As part of his complaint, Mr Hampshire also said he had received an invoice for work of which he had no knowledge and that a request for clarification of the invoice had not been responded to by Cleveland.

In her response to the committee, Cleveland said the request for the file had coincided with the Christmas “rush”. Cleveland submitted that her availability to provide the file therefore had to be prioritised, taking into account the busy period prior to the Christmas break and the pressure of work involved in clearing the post-Christmas work backlog.

The committee found Cleveland had breached rule 4.4.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 and that was unsatisfactory conduct.

Rule 4.4.1 imposes a duty on lawyers to “act upon any written request to uplift documents without undue delay subject only to any lien that the former lawyer may claim,” the committee said.

The committee also found Cleveland had breached rule 9.6 by rendering an invoice in relation to the preparation of a will, which had not been rendered within a reasonable time of completing the matter, and that was unsatisfactory conduct.

As well as fining Cleveland $1,000, the committee ordered Cleveland to cancel and refund a fee of $294 plus GST, incurred for preparing the will and to pay $750 costs. It also ordered the anonymised publication of its determination.

On review, the Legal Complaints Review Officer (LCRO) confirmed the finding that Cleveland had breached rule 4.4.1.

“What is clear is that [Cleveland]’s obligation to release the files was not in dispute by 18 December 2015, when Mr [Hampshire] settled all his outstanding accounts,” the LCRO said in LCRO 228/2016.

“Whilst I have taken into consideration [Cleveland]’s argument that her ability to provide the files promptly was significantly impeded by the intervention of the Christmas break, I am not persuaded that the interruption of the holiday period provides reasonable explanation for the delay that occurred.”

The LCRO noted that the committee’s finding that Cleveland had breached rule 9.6 was based on a misunderstanding that the invoice for will preparation had been for a will made eight years earlier.

In fact, the complaint related to Cleveland charging fees for the preparation of a will in 2014 (which Mr Hampshire said he did not recall having discussed with Cleveland). As such, the LCRO reversed the committee’s finding that Cleveland had breached rule 9.6.

However, it was noted that on receiving Mr Hampshire’s files, the law firm made repeated requests to uplift the will file.

Cleveland finally forwarded what she described as an “updated draft will” and the firm again asked Cleveland to provide the will file. Following these exchanges, Cleveland confirmed she was not holding a physical file.

“[Cleveland] should have been able to provide evidence of a file being opened and compiled which comprehensively recorded the instructions received. In response to repeated and persistent requests to provide a copy of the will file, she was unable to do so, and simply provides explanation that she prepared the will on instructions,” the LCRO said.

“That is inadequate. Instructions received in respect to the preparation of a will should be carefully recorded.

“A written record of the instructions received on occasions assume considerable significance particularly in circumstances where the will is subjected to challenge. A failure on the part of a practitioner to have faithfully recorded the instructions provided in a form which is open to examination constitutes a significant lapse.” This amounted to a breach of rule 3 and that was unsatisfactory conduct, the LCRO determined.

The LCRO also said that the order directing refund of a fee for will preparation should be varied to accurately record the total fee charged. It varied the committee’s $294 refund order to a $355 refund. The LCRO also ordered Cleveland to pay $900 costs.