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Lawyers Complaints Service: Failure to keep client informed and respond to ministry

22 November 2013

Failure to keep his client informed and to respond to the Ministry of Justice about a complaint has resulted in a fine of $1,000 for a Christchurch lawyer, D.

D was assigned to represent a legally aided client in a criminal matter involving burglary, indecent assault and attempted sexual violation.

The client complained to the Ministry of Justice about D, alleging a lack of competence, including among other things, failure to appear at court, negotiate a plea bargain, untidy appearance, and failure to keep the client informed. The ministry referred the client’s concerns to D but no response was received despite the ministry contacting D twice about providing submissions.

The client requested a new lawyer be assigned and alternative counsel was arranged.

The Ministry of Justice considered the complaints and determined that they were substantiated. The ministry also identified potential breaches of s4(c) of the Lawyers and Conveyancers Act 2006 and the substantiated complaints, and D’s failure to respond to them, as a breach of D’s obligations to the ministry. The ministry referred the complaints to the Law Society.

In responding to the ministry’s complaint, D said that he had negotiated with the Crown to get the charges reduced as instructed, but the client’s firm instructions that the more serious charges had to be dropped before he would plead guilty made agreement with the Crown unobtainable. This meant, he said, that the client’s view that he had not been competent was not correct, but he acknowledged that he should have kept his client more closely informed of developments.

With respect to the failure to respond to the Ministry of Justice’s request for an explanation on the client’s complaints, he advised that he had been ill and unavailable at the time and had been unable to respond.

The committee said that it accepted a number of his explanations. However, it was concerned that D’s admitted failure to keep the client informed had continued through to his failure to provide full responses to the ministry and the committee. The earthquakes provided some explanation for failures to communicate with his client, but did not explain or excuse all of them. For example, the committee identified a casual approach by D to receiving notices by mail, which was because FD“checked his Post Office Box infrequently” since the earthquakes.

The committee also noted that D had provided medical evidence that did not relate to the relevant time periods in support of his submission that his ill-health had contributed to his failure to reply to the Ministry of Justice.

The committee determined that no further action be taken on a number of the complaints made about D.

The committee, however, made a finding of unsatisfactory conduct about D’s failure to keep his client informed and about the failure to respond to the Ministry of Justice.

The committee ordered publication of the facts of the complaint, because in the committee’s view, failing to fully engage with the Ministry of Justice in a timely way when complaints relating to the provision of legal aid work arise needed to be understood to be inappropriate by the profession.

As well as the $1,000 fine, the committee ordered D to pay the Law Society $750 costs, which was raised from the starting point of $500 because of D’s failure to respond promptly to the standards committee.

Last updated on the 17th March 2016