New Zealand Law Society - Lawyers Complaints Service: Censure for substandard court case conduct

Lawyers Complaints Service: Censure for substandard court case conduct

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Wellington lawyer Papali’i Toti Lagolago has been censured for conducting a court case “below an acceptable standard”.

As well as censuring Ms Lagolago, the New Zealand Lawyers and Conveyancers Disciplinary Tribunal in [2015] NZLCDT 43 also ordered that Ms Lagolago be mentored by a senior lawyer for 12 months, initially involving at least fortnightly meetings between her and the mentor.

In [2015] NZLCDT 25, Ms Lagolago faced charges arising from her representation of Mr and Mrs F in relation to debt to a finance company.

The charges related, among other things, to the standard of her advice to the client on settlement proposals offered, the likelihood of success and risks in litigation with the finance company and her conduct of the resulting case. The District Court Judge hearing the case was “strongly critical” of Ms Lagolago’s representation and conduct in both his decisions on the merits and a later costs application.

“The whole conduct of the litigation on behalf of the F’s has been seriously ill-judged, lacking in proper legal analysis and commercial commonsense,” the Judge said.

“It is disturbing that what should have been a dispute about the amount owing under a loan contract (not exceeding $12,000), which could have been satisfactorily resolved in the Disputes Tribunal without legal fees, has been escalated into a two-day hearing in the District Court, necessitating a 107-paragraph judgment which has cost the successful parties a total of over $75,000 in legal fees and disbursements and leaves the Fs now facing judgment, not just for the balance of the loan contract, but for far greater sums in costs, apart altogether from their own legal costs – all this despite some clear warnings from the defendants.”

He was, however, satisfied that the Fs and their counsel were acting in good faith, the Judge said.

The Tribunal said that it accepted Ms Lagolago’s evidence, supported by the evidence of another lawyer who had represented the Fs, that “Mrs F was utterly determined to have her day in Court”.

Settlement offer

Before the litigation, the Fs received a settlement offer of $6,678.13 “in full and final settlement”. That was, the Tribunal said, “objectively, the best possible route out of the F’s situation”.

“Ms Lagolago says that she advised the clients to accept or seriously consider this offer. However she allowed herself to be deterred in the strength of her advice by their protestations of inability to pay.”

The Tribunal found Ms Lagolago guilty of negligence in her professional capacity of such a degree or so frequent as to bring her profession into disrepute.

“We wish to be clear that it will be relatively rare for the Tribunal to find that counsel involved in contested litigation has met the negligence and competence criteria in preparing and filing pleadings and appearing at a subsequent hearing,” the Tribunal said.

“We recognise that counsel must be given latitude arising from the possible range of views about the viability of the cause of action and the likelihood of success. If there were not such variations there would, of course, be no litigation.

“However there will be instances where the pleadings and conduct of the case are objectively so flawed and unlikely to succeed that disciplinary intervention is warranted.

“We have reached the view that this is one of those cases having regard to the cumulative effect of the evidence we have found to be proven.

“We have taken into account, and have considerable sympathy for, the difficulty of a practitioner faced with a client who is set in a particular view,” the Tribunal said.

The censure

“Ms Lagolago, you are censured. A censure marks the disapproval of this Tribunal on behalf of its members, on behalf of members of the public and members of your profession for your behaviour that has led to your present predicament.

“It is more than a slap on the wrist. It is a genuine expression of concern about your behaviour that will become part of your disciplinary record.

“You accepted instructions in a field with which you are not familiar. You failed to recognise the need for competent assistance and pursued a course of action in a way that was severely criticised by the District Court Judge both procedurally and on its merits.

“You still seem to lack any real insight into your errors and lack of proper judgment.

“This Tribunal came very close to interfering with your right to practise but has chosen instead to put in place a supervisory regime and a limitation on your areas of practice that will hopefully allow you to reflect on your lack of insight and to continue to practise successfully in the areas of your competence.”

As well as the censure and mentoring order, the Tribunal recorded Ms Lagolago’s undertaking “not to accept instructions in relation to any civil litigation matter without the prior approval of the mentor approved pursuant to the direction of the Tribunal. This undertaking will last for the duration of the mentor’s appointment.”

She was also ordered to pay the New Zealand Law Society costs of $12,000, to reimburse hearing costs of $16,514 and to reduce her legal fees to the Fs by $14,000. Ms Lagolago is appealing to the High Court.

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