New Zealand Law Society - Be very clear if you are not acting

Be very clear if you are not acting

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A lawyers standards committee has assessed the actions of a lawyer as “not particularly wise”, serving as a reminder for other lawyers. The lawyer did not believe she had been instructed and the committee could not find persuasive evidence she had been engaged. However, the lawyer met with a party to a proceeding, accepted a file from him and called the Māori Land Court about a possible adjournment of a hearing. This gave rise to a complaint.

The complainant, Mr A, said that the lawyer, B, had been instructed by him to act for a trust, had failed to appear at the hearing in the court and had misled him that she had obtained an adjournment for the hearing. The adjournment had not been granted.

The committee found that the complaint had not been proven on the balance of probabilities and decided to take no further action.

However, it decided that the facts of the decision should be published as a useful warning to B and to other lawyers to “take more care” in similar circumstances.

“When approached by someone for (preliminary) advice regarding legal matters, it would be best practice – particularly when the person is unfamiliar with engaging lawyers – for a lawyer to make it abundantly and expressly clear if they are not (or not yet) acting as the person’s lawyer,” the committee said.

Following earlier email and text contact, arising outside of a professional context, B met Mr A and his uncle two days before the Māori Land Court hearing. The meeting was not at B’s offices.

In explanation B said that at that meeting Mr A was encouraged to request an adjournment. B called the Māori Land Court on her phone because Mr A had no credit on his. B spoke only because Mr A and his uncle said they had difficulty hearing on her phone.

She said she told Mr A his case manager was not available but the court would send an email to the case manager who would contact him. B explained that she took Mr A’s file in order to prepare a chronological summary, seemingly on the basis that this would only be done if her law firm was subsequently instructed.

B’s interpretation was that Mr A would represent himself at the hearing and he planned to hire a lawyer after that.

However, Mr A’s position was that he had instructed B to act for him and the trust, that she failed to appear at the hearing and that she misled him and his uncle by advising them she had obtained an adjournment.

The committee noted that this was a situation where the complainant’s and the lawyer’s description of events were “entirely at odds with one another”. It considered “persuasive evidence” was required in order to make a disciplinary finding on a relatively serious complaint and was unable to conclude there was such evidence” that B had lied or that she had been engaged to act and then failed to appear at the hearing.

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