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Lawyers Complaints Service: Unsatisfactory conduct finding reversed by LCRO

28 April 2014

In 2012 a lawyers standards committee made a finding of unsatisfactory conduct against E, a lawyer who was a consultant with a law firm, who charged for his time in responding to a complaint to the Law Society. The Legal Complaints Review Officer (LCRO) in LCRO 182/2012 reversed this decision, although the costs order remained in place.

E was a co-trustee for a deceased estate. After the estate had been distributed, the beneficiary of the estate complained that the distribution had taken too long, and that E had not communicated with him adequately.

E responded to the complaint by setting out in detail the correspondence that had been entered into and the time that had been taken for each step in finalising the distribution of the estate. The estate was then billed for E’s time in responding to the complaint. The complainant raised this matter with E and E sought the guidance of the standards committee.

The committee referred E to the decision of the LCRO in Shrewsbury v Rothesay LCRO 99/2009. In that decision, the LCRO had indicated that it was not appropriate for a lawyer to charge a client for attendances in dealing with such a complaint. When E received this information, he reversed the charge made for responding to the complaint.

After conducting its investigation, the standards committee determined that there was no unsatisfactory conduct regarding the timing and manner of the distribution of the estate.

However the committee found that E should not have charged for his time in responding to the complaint, and that this constituted unsatisfactory conduct. In the circumstances the standards committee did not impose a fine but ordered that E pay costs of $500.

E sought a review of the determination by the LCRO. E submitted that he had not been aware of Shrewsbury. He also noted that when the invoice was queried, it was agreed with the complainant that the advice of the standards committee should be sought, and upon receipt of that advice, the invoice had been reversed immediately.

E noted that he was, initially, following the advice of his employer, and that it was the firm which had charged the fee and reversed it, and not him.

The complainant indicated that he accepted these points, and had no objection to the decision of the standards committee being reversed.

The LCRO’s discussion of the issues traversed the purposes of the complaints process, which is to protect consumers, and also to ensure lawyers adhere to their professional obligations, thereby maintaining confidence in the legal profession.

Where a complaint is a consumer complaint, the LCRO said, “the purposes of the [Lawyers and Conveyancers] Act [2006] will generally be met if the issue can be resolved in a way which is fair and also acceptable to the client without the need for an adverse decision by a standards committee”.

The LCRO referred to the approach commonly taken by standards committees in costs assessment cases, in which no further action is taken when the lawyer adjusts the disputed invoice in accordance with the cost assessment.

The LCRO noted this is a pragmatic way to resolve disputes when there is no suggestion of gross overcharging.

The LCRO, however, said that “where there are serious questions about the conduct of the lawyer, it is unlikely that it will be appropriate for a standards committee to take no action on the complaint”.

The LCRO agreed with the submissions E had made about his conduct, and that there was no suggestion of dishonesty or lack of good faith. Taking all the factors into account, the LCRO decided that a finding of unsatisfactory conduct against E was unwarranted.

Despite this, the LCRO said that the inquiry by the standards committee was wholly appropriate. As a result, the LCRO did not alter the order for costs. The LCRO did, however, comment that the costs order may be something E’s employers might consider was their responsibility in the circumstances.

Last updated on the 17th March 2016