New Zealand Law Society - Lawyers Complaints Service: Compensation for incorrect advice

Lawyers Complaints Service: Compensation for incorrect advice

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A lawyer, C, who advised his client to take his two children to Australia in breach of a Family Court parenting order has been ordered to pay $25,000 compensation and reduce his fee by $8,000 by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZLCDT 69.

C pleaded guilty to a charge of negligence or incompetence of such a degree as to reflect on his fitness to practise or to bring the profession into disrepute.

After C had obtained a parenting order in favour of his client, the client’s mother and then the client discussed by phone with C the possibility of the children relocating to Sydney, where the paternal grandparents lived.

Later by email, the paternal grandfather asked C for specific legal advice as to the steps that were necessary for his son and grandchildren to move to Australia permanently.

He wanted to know what the mother of the children could do to prevent that happening. He also made it clear that he did not want his son to move if he had to later return and face further court proceedings.

C did not provide correct legal advice, the Tribunal said, but told the grandfather that:

  • his son should go quietly;
  • informing the children’s lawyer might end up being expensive and time consuming; and
  • at a later date there may be contact issues between the children and their mother which the father might have to deal with.

The paternal grandfather again repeated in an email that his son did not want the drama of having to return to New Zealand to sort matters out.

C did not advise of the possibility of Hague Convention proceedings or that acting unilaterally was a breach of the Family Court parenting order. He did not advise the father of the children of the potential consequences of Hague Convention proceedings and breaches of a court order.

When C became aware that the children were removed to Australia, he did not explain the law and the risks that the father faced by his actions.

The children were returned to New Zealand as the result of an order made under the Hague Convention. C then applied to the New Zealand court for a direction that the children could continue to live with their father in Australia. C charged a fee for that.

The father of the children faced substantial legal fees in Australia arising out of his unilateral action and the subsequent Hague Convention proceedings.

The Tribunal noted that the counsel for the Law Society’s standards committee acknowledged it was not a case requiring the practitioner be struck off or suspended. “It would appear to be an isolated case where an otherwise experienced and responsible practitioner has fallen short of his normal standards.”

C sought name suppression, particularly for the reason that it may have an impact on the government appointment he holds. C also submitted that where the conduct had not warranted striking off or suspension, the public interest in publication is significantly lessened. Counsel also pointed to a lengthy career and unblemished record of service outside the law.

Noting that the test it must apply is whether or not it is “proper” to grant the application, the Tribunal noted that was a lower threshold than the “exceptional” threshold used by the courts in the civil and criminal jurisdictions.

“The Tribunal has had regard to the lowered threshold test and is persuaded that the factors advanced by counsel for [C] do outweigh the interest that the public has in knowing who has breached professional standards.”

As well as making an order prohibiting publication of C’s name, the Tribunal also ordered C to pay the Law Society $9,109.41 standards committee costs and $1,498 Tribunal costs.

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