Following a review application by lawyer (Mr FN), the Legal Complaints Review Officer (LCRO) confirmed a Standards Committee’s finding of unsatisfactory conduct against him (relating to overcharging and failures in communication with his client). While the LCRO reversed the Committee’s censure order, he increased the fine imposed from $5,000 to $7,500, because of Mr FN’s disciplinary history.

A client, Ms EO, met with Mr FN to discuss options for recovering funds that had been invested in a company. Two days later, Mr FN invoiced Ms EO close to $35,000. That was to cover the expected work of serving a statutory demand and investigating and reporting on possible causes of action. Ms EO paid that invoice.

Ms EO complained that she received minimal updates from Mr FN over two years and only became aware that he had left the law firm after the fact. She said she saw no progress and sought a “fair and reasonable adjustment of the fees”. The lawyer responded that the firm charged fixed fees and did not record time; he nevertheless reported that he had spent extensive time on the matter. He said he had updated a third party and expressed surprise that the updates had not been passed on to Ms EO.

While the Standards Committee had found that Mr FN had failed to act competently (in breach of r 3), the LCRO reversed that finding. That was because of the “dearth of information” on the file. The LCRO commented that “[s]omewhat perversely” that lack of information meant the finding that Mr FN did not act competently could not be confirmed.

The LCRO confirmed Mr FN’s failings due to his lack of direct communication with Ms EO over a period of two years. In addition to the Committee’s findings that Mr FN breached r 7.1, the LCRO found that Mr FN also breached r 7. Those rules include obligations of lawyers to promptly disclose relevant information to clients and to keep clients informed about progress on their retainer.

The LCRO agreed with the Committee that Mr FN charged a fee that was more than fair and reasonable, in breach of r 9. The LCRO noted that a lawyer’s fee, fixed or otherwise, must still be fair and reasonable. The LCRO analysed the reasonable fee factors (r 9.1) and commented on what he considered to be the “unreliable retrospective report” of the lawyer. In essence, the LCRO agreed that with the Committee’s significant reduction in fees from close to $35,000 to $4,000

The LCRO confirmed that the rule breaches amounted to unsatisfactory conduct on the part of Mr FN, pursuant to s 12(c) of the Lawyers and Conveyancer Act 2006.

In terms of penalties, the LCRO accepted that Mr FN’s disciplinary history was a relevant factor to take into account. However, the LCRO noted that a censure must be “appropriate to the facts of the complaint before it”. He concluded that the rule breaches in this case did not warrant censure. However, he considered Mr FN’s disciplinary history indicated “some degree of indifference to the need to comply with professional standards”, warranting an increase in the fine imposed from $5,000 to $7,500.

The full anonymised decision can be found here: LCRO-130-2022-FN-v-EO.pdf