New Zealand Law Society - Unsatisfactory conduct findings reversed

Unsatisfactory conduct findings reversed

Published on 8 February 2019

[Names used in this summary are fictitious]

The Legal Complaints Review Officer (LCRO) has reversed findings of unsatisfactory conduct by a lawyer, but in doing so stated that the complaint “was justified”.

Ms Waterbrook asked a lawyer, Turvey, to act for her on several matters, including the proposed sale of her apartment, enduring powers of attorney (EPoAs) and a proposed will. Ms Waterbrook also advised that she would shortly be looking at retirement village living and would “need advice about that”.

Ms Waterbrook subsequently complained about a number of aspects of Turvey’s service to the Lawyers Complaints Service.

Upon consideration of Ms Waterbrook’s complaint, a lawyers standards committee considered that Turvey had breached a number of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC). The committee noted that:

  • by drafting a will and medical directives without Ms Waterbrook’s instructions, Turvey had contravened rule 3;
  • Turvey’s failure to respond to a number of Ms Waterbrook’s emails in a timely manner contravened rules 3.2 and 7.2; and
  • by failing to inform Ms Waterbrook that her EPoAs were ready to sign, Turvey had contravened rules 7 and 7.1.

Further, because there were “a number of shortcomings” with the client service Turvey provided the committee considered that Turvey’s second invoice was not “fair and reasonable” in contravention of rule 9.

After making a finding of unsatisfactory conduct, the committee fined Turvey and ordered him to cancel the second of the two invoices he issued Ms Waterbrook.

On review

Turvey sought a review of the committee’s determinations. In LCRO 116/2017, the LCRO noted that it was presented with conflicting versions of events.

“Ms [Waterbrook]’s evidence is that she did not instruct [Turvey] to prepare the will and medical directives. [Turvey]’s evidence is that Ms [Waterbrook] did.

“Where, in such circumstances, there is both conflicting and insufficient information, without the benefit of examining the witnesses it is not possible for me to decide which party’s version of events is to be preferred,” the LCRO said.

Unfortunately, Turvey’s letter of engagement, which described the legal services as “matters from time to time”, provided no clarification on the issue. It would have been sensible for Turvey to have written to Ms Waterbrook to clarify with her exactly what legal work he understood she required of him, the LCRO said.

On the question of whether Turvey had prepared the EPoAs in a timely manner, the LCRO noted that there was no mention in any of Ms Waterbrook’s written communications that she required the EPoAs to be completed urgently. She had not established to the degree of proof necessary, on the balance of probabilities, that her instructions to prepare the new EPoAs were urgent.

Although [Turvey] ought to have taken the initiative and informed Ms Waterbrook that the EPoAs were ready for her signature, “by a fine margin, I do not consider that his failure to do so warrants an adverse finding against him,” the LCRO said.

Ms Waterbrook complained that Turvey had not responded to her emails asking if an offer to purchase her apartment communicated to the firm by email could be accepted by email.

The LCRO noted that Turvey delegated the task of responding to a legal executive his firm employed. “That request was overtaken by events, namely Ms Waterbrook attending at the firm’s office the following morning to sign the sale agreement.

“However, although it is evident Ms [Waterbrook] did not receive the advice she requested, I observe that no adverse consequences followed for either Ms [Waterbrook] or [Turvey]. In these particular circumstances, I do not consider that Mr [Turvey]’s omission deserves an adverse finding on this aspect of Ms [Waterbrook]’s complaint,” the LCRO said.

Because the LCRO had not made a finding of unsatisfactory conduct against Turvey, it was not open to order that the second invoice be either reduced or cancelled.

However, because the LCRO considered Ms A’s complaint was justified, Turvey was ordered to pay $500 costs.