2012 Decisions
2012
April
KW v WB LCRO 118 / 2010 - Practitioner acted for separated couple on house sale, and held proceeds in his firm's Trust account pending resolution of division. Applicant and former wife each engaged different counsel to deal with relationship property distribution, on whose combined instruction the Practitioner released funds into the respective trust accounts of those lawyers. Applicant's complaint that money had transferred without his consent was rejected by Committee. LCRO confirmed Committee's decision, and noted that while Practitioner not prohibited from communicating with Applicant, he was not expected to "look behind" the instructions given by the Applicant's counsel.
Full Decision (PDF, 86Kb)
KX v WA LCRO 84 / 2012 - Application received by Legal Complaints Review Office by fax at 11:20pm on 30th working day. Application fee paid one day late due to bank processing time. Out of time. Application must be received before 5:00pm. No jurisdiction in the Act for LCRO to extend deadline.
Full Decision (PDF, 45Kb)
LA v VY LCRO 217 / 2010 - Practitioner as executor/trustee of thir party's will. Applicant sole beneficiary. Complaints against Practitioner related to work done for third party prior to her death (sale of house/disposition of chattels) alleging property sold below true value, and sale proceeds not accounted for. Committee found no professional conduct issues arising. LCRO confirmed Committee decision. However, LCRO expressed concern that Applicant received his inheritance only after he had been required to sign an agreement not to make complaints against the Practitioner. LCRO's further concern was that the Applicant had received legal advice from two lawyers in relation to that agreement. LCRO noted agreement not effective to prevent a complaint. Practitioner was cautioned, and LCRO exercised discretion to take no further action.
Full Decision (PDF, 73Kb)
KB v WY LCRO 67 / 2011 - Deduction of fees leading to shortfall for mortgagee. Statements made by lawyer evasive and ambivalent but not misleading. No duty owed to mortgagee represented by another law firm. Allegations of deemed and constructive knowledge insufficient to make finding of unsatisfactory conduct.
Full Decision (PDF, 107Kb)
KD v WW LCRO 83 / 2011 -Lawyer instructed with regard to access / custody of child residing with mother in England. Lawyer failed to take immediate steps to instruct local Lawyer in England. Lack of timely service in providing affidavits to step father's lawyer in opposition to application for custody by mother. Actions ineffective to further client's application. Decision of Standards Committee as to unsatisfactory conduct confirmed.
Full Decision (PDF, 119Kb)
KF v WP LCRO 103 / 2011 -On behalf of his clients, the Practitioner instructed third party to give expert evidence. No fees arrangement so Rule 12.2 RCCC applied (lawyer who instructs third party on client's behalf is responsible to pay that party's fee in the absence of any other arrangement). No disciplinary finding against a lawyer whose client challenged the reasonableness of third party's witness fees. Rule 12.2 does not preclude the application of the Consumer Guarantees Act.
Full Decision (PDF, 89Kb)
May
KS v WF LCRO 202 / 2011 - The Practitioner acted for both parties on the sale of the matrimonial home. Lawyer for wife sent A & I to Practitioner "strictly on the basis that the funds will not be disbursed until the necessary agreement has been signed." The Practitioner released funds on the day of settlement to enable his client (the husband) to purchase a replacement property. Breaches of LCA, section 110; CCR, rules 3, 5 and 10; and Trust Account Regulations, clauses 12(6) and (7). Lawyers must be able to rely absolutely on other lawyers to abide by the terms on which documents, consents or authorities provided, and any uncertainties should be clarified rather than proceeding on the basis of a unilateral interpretation of the terms on which such items are provided.
Full Decision (PDF, 106Kb)
March
HF v SZ LCRO 186 / 2009 -LCRO confirmed SC decision of unsatisfactory conduct where the Practitioner acted on instructions of a client with doubtful legal capacity; but vacated SC order for publication of Practitioner's name.
Full Decision (PDF, 62Kb) Publication Decision (PDF, 83 Kb)
IR v ST LCRO 203 / 2010 -The fact that a lawyer has a different opinion from that which is held by the Court of Appeal to be the law does not necessarily mean that a lawyer lacks competence resulting in a finding of unsatisfactory conduct .A lawyer's fees need not reflect the amount at stake where a client wishes to pursue a matter on principle. A lawyer is entitled to be satisfied as to a client's ability to make payment of costs before costs are incurred.
Full Decision (PDF, 190Kb)
IQ v SG LCRO 56 / 2011 - Complaints about overcharging and service-related matters not upheld by Standards Committee, whose decision was confirmed by LCRO.
Full Decision (PDF, 69Kb)
IW v SD LCRO 1 / 2011 - Rule 3.6 CCCR. Changes to hourly charge out rates amount to a material matter to be notified to a client pursuant to Rule 3.6.
Full Decision (PDF, 87Kb)
IX v SC LCRO 226 / 2010 - Misunderstanding of costs complaints procedure may have contributed to lack of resolution of complaint. Costs complaints not a cost revision as provided for in Law Practitioners Act 1982. Finding of unsatisfactory conduct by reason of breach of rule 9 of Conduct and Client Care Rules required before bills may be adjusted. Need for some degree of certainty that lawyers bill demonstrably too high before finding of unsatisfactory conduct.
Full Decision (PDF, 57Kb)
IZ v SB LCRO 187 / 2011 - Complainant alleged that Practitioner (acting in a Sale & Purchase Agreement) had failed to protect his interests in relation to a rent guarantee clause in the purchase contract. LCRO upheld SC decision to take no further action. LCRO concluded that Complainant was aware of the guarantee clause which he had negotiated without Practitioner's help.
Full Decision (PDF, 59Kb)
JG v RS LCRO 245 / 2010 - Defendant liable for plaintiff's lawyer's costs in proceedings. Defendant objecting to quantum. Court ordered costs to be fixed by "Law Society costs revision process. Cost revision process abolished by LC Act. Need for Committee to find unsatisfactory conduct by reason of breach of rule 9 of CCCR to give effect to Court direction. Matter returned to Standards Committee to obtain costs assessors report taking into account the unusual circumstances of this complaint.
Full Decision (PDF, 96Kb)
JI & JJ v RR LCRO 84 / 2011 - Practitioner's failure to include (on a website) services not undertaken by the lawyer (or firm) does not constitute "misleading the public". That a lawyer is described as "a barrister and solicitor" does not amount to a holding out that he or she practises as a litigator. LCRO upheld SC decision to take no further action.
Full Decision (PDF, 82Kb)
JL v RP LCRO 249 / 2011 - No jurisdiction to file review outside of 30 day working period.
Full Decision (PDF, 41Kb)
JK v RQ LCRO 174 / 2011 - SC found that Practitioner had taken all reasonable steps to discover information about bank accounts when her client, the Complainant, contended that his former partner had concealed money. Complainant believes Practitioner did not go far enough in discovery process, and sought review. LCRO upheld SC decision, concluding that Practitioner's professional obligation had been met. Obligation did not extend to taking unusual or extraordinary steps, noting absence of any evidence supporting Complainant's belief. Practitioner's obligation ended when another lawyer had commenced acting, which was before property proceeding concluded.
Full Decision (PDF, 75Kb)
JD v RU LCRO 55 / 2011 - Lawyer acting for accused confronting father of child victim in Court precincts. Father and supporters intimidating accused. Breach of Rules 10 and 12 CCCR and s12(b) LCA. Unsatisfactory conduct. Censure and costs.
Full Decision (PDF, 130Kb)
February
KV v WC LCRO 102 / 2011 - Applicant engaged Practitioner to assist with her purchase of a property. Applicant complained that Practitioner did not properly protect her interests in the sale. Committee noted that Applicant did not raise this issue with Practitioner until 5 years after sale, but in any event found Practitioner took all reasonable steps to protect Applicant's interests and dismissed the complaint. Decision confirmed on review.
Full Decision (PDF, 59Kb)
GX v TF LCRO 54 / 2011 - Complaints of unreasonable delay and overcharging not upheld by the Standards Committee. Confirmed by LCRO on review.
Full Decision (PDF, 63Kb)
GZ v TE LCRO 17 / 2011 - Barrister proposed to issue committal proceedings against partners in law firm . Unsatisfactory conduct n the particular circumstances of this case.
Full Decision (PDF, 155Kb)
IN v SK LCRO 53 / 2011 - SC decision amended. LCRO concluded that SC erred in reducing Practitioner's fee below that recommended by costs reviewer for reasons unrelated to reasonableness of fee (SC did not disagree with reviewer's assessment) but for reasons relating to conduct. In amending the SC decision, LCRO confirmed the fee recommended by the reviewer, and also modified other conduct-related findings of the SC.
Full Decision (PDF, 92Kb)
IO v SJ LCRO 84 / 2010 - Beneficiary of a trust alleged the Practitioner's historical involvement as trustee of a family trust created a conflict which ought to have prohibited the Practitioner from accepting reappointment as trustee at a later date. Review sought because SC had not dealt with either the conflict complaint or complaints of delay in responding to communications. No evidence of Practitioner's involvement in questionable historical transactions of the trust, therefore no conflict that prohibited his Trustee reappointment. Insufficient basis for disciplinary finding in respect of complaints about delay. Rules of Conduct and Client Care; Chapter 6 and Rule 10.1. LCRO confirmed SC decision to take no further action pursuant to section 138(1)(f) of the LACA.
Full Decision (PDF, 112Kb)
IP v SI and SH 179 / 2010 and 180 / 2010 - A warning that costs will be sought against counsel acting for a prospective plaintiff, in the event that proceedings are filed, may amount to a breach of Rule 10 and 10.1 of the Rules of Conduct and Client Care. In this case circumstances did not warrant a disciplinary finding. SC decision confirmed on review.
Full Decision (PDF, 102Kb)
IJ v SO LCRO 76 / 2011 - Complaints about overcharging and service-related matters not upheld by Standards Committee, whose decision was confirmed by LCRO.
Full Decision (PDF, 94Kb)
IK v SN LCRO 42 / 2011 - Property owned by several persons as tenants in common. Solicitor acting on sale of property receipted funds paid on settlement into a single trust account ledger held for all registered proprietors. Ownership as tenant in common does not entitle each owner to require payment of share of sale proceeds equivalent to proportion of ownership of property. Instead, the consent of all owners is required to any disbursement of funds. Reg 12 Trust Account regs. Section 110(1)(b) LCA.
Full Decision (PDF, 97Kb)
JB v RW LCRO 87 / 2011 - SC decided to take no further action on complaint against Practitioner who acted for complainant (and her sister) who were executors in their mother's estate. Delays in administration of estate found to be due to sisters' failure to agree on most issues, and Practitioner unable to obtain clear instructions. Practitioner not found responsible for failure of third parties to carry out their legal responsibilities (executors, Family Trust's accountant) or a third party's failure to comply with agreed process for distributing estate jewellery. Practitioner's efforts to assist with resolving a number of these issues did not raise disciplinary concerns. Review process assisted resolving some issues. LCRO confirmed SC decision.
Full Decision (PDF, 91Kb)
JF v RT LCRO 148 / 2011 - LCRO confirmed SC decision to take no further action against Practitioner as there was no evidence of any wrongdoing. Costs ordered against Applicant for failing to attend LCRO review hearing. LCRO also confirmed as correct the SC declining jurisdiction in relation to complaints disposed of under the Law Practitioners Act 1982. In the light of the Applicant's dissatisfaction with the outcome of that investigation, LCRO accepted that Applicant still had a right to a Lay Observer review of the prior decision. LCRO undertook that review pursuant to section 355 of the Lawyers and Conveyancers Act and issued a separate report to the Applicant.
Full Decision (PDF, 68Kb)
January
GQ v TO LCRO 76 / 2011 - Distinction between lawyer as solicitor, and lawyer as executor / attorney. Duty of executor/ attorney to take steps to establish assets of deceased. Lawyer not to be criticised for incurring costs in taking steps to fulfill obligations. No duty to undertake estate planning exercise on receipt of limited retainer to prepare Powers of Attorney.
Full Decision (PDF, 105Kb)
GO v TQ LCRO 61 / 2011 - Lawyer rendered 3 bills of costs in the course of administration of estate. Standards Committee declined jurisdiction in respect of first 2 as each was below $2000 and rendered more than 2 years prior to complaint. Special circumstances exist in terms of regulation 29 of Complaints and Standards Committees regulations to enable consideration of all accounts.
Full Decision (PDF, 79Kb)
GS v TM LCRO 133 / 2011 - Scope of services defined by retainer. Lawyer not at fault for failing to provide advice that the client was told would not be provided. Advice related to a matter outside of the usual scope of conveyancing work, namely an obstruction on vacant land that did not appear on the title and was not discoverable by usual enquiry. LCRO confirmed Standards Committees decision to take no further action.
Full Decision (PDF, 81Kb)
GT v TL LCRO 05 / 2011, GT v TK LCRO 06 / 2011, GT v TJ LCRO 10 / 2011 - Lawyer acting for a legal entity does not give rise to a professional relationship with the CEO of that entity. Relationship of lawyer/client is not indefinite, but ongoing duty of confidence prevents use of confidential information against a former client. SC found no conflict and no breaches of confidence. LCRO confirmed Standards Committees decisions.
GT v TL Decision (PDF, 89Kb)
GT v TK Decision (PDF, 54Kb)
GT v TJ Decision (PDF, 57Kb)
GO v TQ LCRO 61 / 2011 - Lawyer rendered 3 bills of costs in the course of administration of estate. Standards Committee declined jurisdiction in respect of first 2 as each was below $2000 and rendered more than 2 years prior to complaint. Special circumstances exist in terms of regulation 29 of Complaints and Standards Committees regulations to enable consideration of all accounts.
Full Decision (PDF, 79Kb)
