Published on 5 April 2019

[Names used in this summary are fictitious]

Allegations that a lawyer failed to meet her discovery obligations were not supported by evidence on the balance of probabilities, the Legal Complaints Review Officer (LCRO) has found.

The lawyer, Corney, acted for a company in an employment dispute with a Ms Mantalini.

Ms Mantalini complained that Corney did not fulfil her professional obligations regarding discovery.

A lawyers standards committee decided to take no further action on the complaint.

The committee said it found that Corney had liaised with the company regarding its discovery obligations and ensured that the company understood and fulfilled those obligations.

Ms Mantalini’s lawyer, Mr Tackleton, sought an LCRO review of the decision on her behalf.

Mr Tackleton submitted that the committee made an error in making its determination to the point that the determination could not be relied upon. That error was that Corney did not provide any direct statement to the committee herself and instead the committee relied on submissions from her counsel as to what advice she provided the company.

“Mr [Tackleton]’s submission that the committee’s determination is ‘unreliable’ is puzzling, and is not accepted,” the LCRO said in LCRO 137/2016.

The very matters the LCRO was considering were before the Employment Court in a challenge to a determination of the Employment Relations Authority.

The following comments by the Chief Judge were “pertinent”:

“…the plaintiff’s allegation that the defendant’s solicitor has failed to discharge her disclosure obligations is not supported by the sort of evidence that the Court would expect to have before it to establish such a serious allegation of professional misconduct …”

“…it is necessary to say something also about the serious allegations levelled by the plaintiff and her lawyers against the defendant and, particularly, its solicitor. These are serious allegations of professional failure and misconduct. In spite of that, the evidence to support those allegations is, at best, meagre and in most instances non-existent. The Court would have been required to have drawn untenable inferences which it had been unprepared to do, given the high standard of proof required to establish such serious allegations of professional misconduct.”

“It is disturbing,” the LCRO said, “that Ms [Mantalini] has brought the very same matters before the committee and now pursues this matter on review. The comments made by the Chief Judge are clear and there is no reason why those should not have been accepted as a definitive decision on the allegations.

“However, Ms [Mantalini] has now caused [Corney] to incur further costs and expended the resources of the complaints and disciplinary process in continuing to pursue this matter.”

As well as confirming the committee’s decision, the LCRO ordered Ms Mantalini to pay costs to Corney in the amount of $500.