New Zealand Law Society - Lawyers Complaints Service: Solicitor on the record must fulfil duty to the Court

Lawyers Complaints Service: Solicitor on the record must fulfil duty to the Court

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A lawyer, E, was censured by a lawyers standards committee for not fulfilling his duty to the Court in his role as instructing solicitor.

“By his own admission, [E] acted as the solicitor on the record for [the barrister],” the committee said.

However E claimed he and the barrister were not lawyer and client and no fee was charged. It was never intended that he should give legal advice, and it was in effect a “post box only” arrangement. He drafted no documents and did not appear in Court. His instructions were explicitly to refer all matters to the barrister.

Ultimately, the proceedings were unsuccessful and indemnity costs were awarded against the barrister.

The standards committee examined the role and conduct of E as solicitor on record.

“The obligations of a solicitor on the record to the Court arise regardless of the relationship that the solicitor has with the client or the client’s own professional status or standing,” the committee said.

“If the solicitor agrees to undertake a professional role without a fee, a lawyer’s ethical obligations are not altered by virtue of having done so either.”

The committee noted that being a solicitor on the record was not a matter of “satisfying form only, but placed positive duties on the solicitor”.

As summarised in the procedural commentary on High Court Rules in McGechan on Procedure: “The solicitor must satisfy himself or herself that the claim is not one which has no possible chance of success” (HR5.38.03) and “solicitors on the record are responsible to the Court for the due prosecution of the case, and are obliged to apply their minds to its viability” (HR5.38.01).

The duties owed by a solicitor on the record to the Court were “paramount”, the committee said.

“By agreeing to act as a mere post box, [E] failed to assess the viability of the case or to take the steps expected of a solicitor to ensure that the case was prosecuted appropriately.

“[E]’s conduct amounted to surrendering oversight of the litigation entirely to [the barrister] and any barristers instructed by [the barrister].

“As a result, he did not review (or respond in a timely manner to) correspondence from the other party, which raised issues about the discharge of his professional obligations.

“[E] had sought to transfer his obligations as solicitor on the record to [the barrister] and any barristers whom [the barrister] instructed, but his professional obligations could not be so transferred.”

One of the functions of professional obligations, which set the minimum standards for the profession, is to provide safeguards, the committee said.

E, by his acceptance of instructions to undertake such a limited role, allowed the barrister to run the litigation unsupervised while creating the impression that he was exercising that responsibility. By doing so, E “dismantled the professional architecture designed to mitigate the risk of the abuses that occurred,” the committee said.

The committee determined that E’s conduct was unsatisfactory.

“[E] appeared to have little or no awareness of his obligations to the Court as a solicitor on the record,” it said. “As a result, [E] failed to put in place arrangements to fulfil those obligations. It was disturbing that, even in responding to the complaint, he continued to show a lack of awareness that he had any obligation (which he could not transfer to others) to assess the viability of the litigation and ensure it was prosecuted appropriately. In order to impress upon [E] the nature of his obligations to the Court and the seriousness of his ethical lapses, the [committee] censured [E].”

As well as the censure, E was ordered to pay the Law Society $1,000 costs.

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