New Zealand Law Society - Lawyers Complaints Service: Censured for failing client

Lawyers Complaints Service: Censured for failing client

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Dianne Lester has narrowly avoided suspension for failing her client in debt collection proceedings, the New Zealand Lawyers and Disciplinary Tribunal has said.

Instead, the Tribunal censured Ms Lester and fined her $7,500 in [2015] NZLCDT 23.

“The Tribunal has considered that matters are finely balanced and has reached its decision by a close margin,” it said.

Ms Lester admitted one charge of misconduct, one charge of negligence or incompetence and four charges of unsatisfactory conduct. The complainant was a debt collecting agency and Ms Lester undertook large scale high turnover debt collecting matters primarily in the District Court jurisdiction in multiple locations throughout New Zealand.

The misconduct charge related to proceedings to recover a debt of $44,382.77. Ms Lester failed to file a notice of pursuit of claim in time, did not advise the client the claim was at an end but that there was a counterclaim still extant and did not advise the client of a settlement offer made by the defendant.

Instead Ms Lester advised her client that the Court had no recollection of the notice of pursuit of claim ever having been filed, that it had in fact been filed and that she would make further enquiries.

She advised her client that the matter was awaiting a hearing and arranged for an agent to file fresh proceedings at her expense but did not advise her client of the situation.

Negligence charge

The negligence charge related to Ms Lester failing to execute a deed of settlement with a defendant for the recovery of a debt of $114,314.70. The proceedings commenced in June 2008 and settlement was arrived at on 30 October 2009.

The result was that the claim came to an end in February 2011. The settlement had not been finalised but Ms Lester advised her client that the deed was in the process of being executed.

She did not advise her client that the claim was at an end and in July 2011 she advised that she had not heard from the defendant’s solicitor and would follow the matter up.

Failure to pursue claims

Three of the four charges of unsatisfactory conduct resulted from her failure to pursue claims in a timely fashion with the result that the claims came to an end by operation of law.

The fourth charge related to Ms Lester’s failure to serve a bankruptcy notice and then failing to seek an extension of time in which to file the notice.

In each case she failed to advise her client that the claim was at an end; failed to answer requests for information, saying that she was following matters up without success; and allowed matters to continue for up to two years. The failures ceased when the client engaged new counsel.

Although the standards committee sought a period of suspension the Tribunal said it decided that the appropriate penalty to impose was censure, fine, and costs.

“It has reached that conclusion having regard to the following:

a) That the respondent’s conduct was not deliberately dishonest.

b) That her conduct did not display widespread incompetence and or negligence which has displayed a need to protect the public.

c) Her otherwise unblemished career over approximately 25 years.

d) Her genuine remorse for her conduct.

e) The confidence expressed in her by members of the legal and credit control profession is such that she is unlikely to re-offend.

f) The changes that she has made in her practise of the law.”

As well as the censure and fine, the Tribunal ordered Ms Lester to pay the Law Society $26,006.10 for legal costs and $4,632 for Tribunal hearing costs.

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