The Lawyers and Conveyancers Disciplinary Tribunal has found a lawyer not guilty of two charges of misconduct.
In  NZLCDT 77, the lawyer, B, also faced alternative charges of negligence or incompetence and a further alternative charge of conduct unbecoming a barrister or solicitor on each charge. The Tribunal found that none of the charges were proved.
The charges related to a series of transactions relating to property, a company and a family trust.
There was no real dispute about the transactions that occurred. It was the adequacy of a waiver of independent legal advice and the surrounding advice and attendances which was at issue.
The complainant said that she had signed documents presented to her under pressure from her husband and brother-in-law. She signed them not understanding what they were about or what the transaction was about.
She said B had drawn her attention to one document in particular but did not explain what it was. She did read it and commented to the practitioner “looks like you have got your butt covered”. She later learned it was a waiver of independent legal advice.
She did not know and did not have it explained to her what the implications of the document were. She also said she was not given a copy, contrary to what was stated in the waiver document.
B said that the complainant was aware at the time of the conflict between the parties and had clearly consented to his firm acting on her behalf. He said that in respect of all the transactions, his staff solicitor had actually read the waiver to the complainant.
He then explained in blunt, easily understood language what it meant and ensured that the explanation was understood.
“The Tribunal has to resolve the clear conflict in the evidence of the complainant and the practitioner,” the Tribunal’s decision states.
When it considers the complainant’s evidence, it has taken into account that:
- she acknowledged that her memory is ‘not great’;
- she said she had no recall of events until she was reminded of matters that the practitioner set out in his affidavit;
- she had involvement in a series of transactions, the signing of multiple documents and the signing of a waiver document on at least four occasions;
- she expressed that she was committed to go along with what her husband was doing;
- she had been involved in numerous prior property transactions, so that she did have an understanding of mortgages, guarantees and similar documents;
- her recall has to be considered as selective when the Tribunal heard that she was able to comment to the practitioner that he was protecting his own interests and then saying that the practitioner did not give her explanations about the meaning and implications of the transactions and documents; and
- she denied events had happened even when documents signed by her and witnessed stated the contrary.
B acknowledged a disadvantage in that his file notes were no longer available to him, having been uplifted by the complainant’s now former husband. He had to rely in large part on his invariable practice, and was supported in that by his staff solicitor.
“There is, as well, the evidence of the documents that [the complainant] has signed,” the Tribunal said.
“Accordingly … the evidence of the practitioner has to be preferred.”
The Tribunal found that costs should lie where they fell.