The Legal Complaints Review Officer (LCRO) has reversed a lawyers standards committee decision to take no further action against a licensed conveyancing practitioner employed by a law firm.
The person complained about, B, was described by the standards committee as an “unregistered legal executive employed by a law firm”, firm A, the LCRO noted in LCRO 151/2012. The committee had therefore proceeded to consider the complaint on the basis that Ms C was an employee of a law firm.
The LCRO also noted that the complainant, Ms C, had not named firm A as being complained about on the Law Society’s complaint form, and that the standards committee had not addressed the complaint as a complaint against that firm.
B left firm A shortly after the events giving rise to Ms C’s complaints to establish her own conveyancing practice, the LCRO said.
Complaint
Ms C complained that B had provided poor advice and had failed to follow instructions.
The complaint related to the sale of Ms C’s property. Ms C alleged that she had instructed B to verify the existence of a code compliance certificate.
Subsequently, it transpired that no code compliance certificate existed. Because of this, settlement was delayed (and also settlement of Ms C’s ongoing purchase) and after much negotiation Ms C was obliged to accept a $100,000 reduction of price.
Ms C complained that “as a result of poor legal representation I was forced to concede $100,000 from the agreed price of $760,000 to the purchaser in order for the sale to go ahead and in order to save the deposit I paid for my onward sale”.
In its determination, the standards committee said that an email communication supported that Ms C and B discussed Ms C’s assertion that she held the Code of Compliance Certificate and that it had been lost but the council should have a copy
The committee said it considered the correspondence “simply does not support the allegations by Ms [C] in any way” and that B would not have known at the time that the Code of Compliance Certificate situation would prove to be an issue. The Committee determined to take no further action in relation to the complaint.
Jurisdiction
Ms C applied for a review of the decision to the LCRO and the issue of jurisdiction arose in the course of the hearing.
A conveyancing practice may only be operated by a conveyancing practitioner, which is defined in s 2 of the Lawyers and Conveyancers Act 2006 (LCA) as a person who holds a current practising certificate.
The evidence was that B was a conveyancing practitioner (with a current practising certificate) at the time she was acting for Ms C.
Section 135(2) of the LCA provides that if the complaint relates to a conveyancing practitioner, a former conveyancing practitioner, an incorporated or former incorporated conveyancing firm, or an employee or former employee of a conveyancing practitioner, then the “appropriate” complaints service is the Conveyancers Complaints Service, the LCRO said.
The only question to be considered was whether there was the option of referring the complaint to the Lawyers Complaints Service on the basis that she was an employee of a law firm.
“When s 135 refers to the appropriate complaints service for consideration of complaints about employees, therefore, it is referring to persons who are not practitioners. [B] was a practitioner. There is therefore no ability to also treat her as an employee.”
The Lawyers Complaints Service, therefore, “did not have jurisdiction to consider and determine this complaint. [Ms C] now has a decision as to whether or not to lodge her complaint with the Conveyancers Complaints Service.”
Because the committee did not have jurisdiction to consider the complaint, the determination of the standards committee to take no further action is reversed, the LCRO said.
“Pursuant to s 209 of the [LCA], I direct the standards committee to reconsider this complaint as a complaint against [firm A],” the LCRO ordered.
The LCRO ordered that a summary of the decision be published in LawTalk.