Published on 5 July 2019

[All names used in this article are fictitious]

A lawyer who drafted a document purporting to withdraw a complaint about him has been censured and fined $5,000 by a lawyers standards committee.

The lawyer, La Creevy, also drafted a document purporting to instruct that all future correspondence in relation to an estate be directed to the complainant personally and not through his lawyer.

La Creevy acted for Mr Tetterby, who at the time of his death was the partner of the complainant, Mr Harthouse. La Creevy had previously prepared Mr Tetterby’s will, in which Mr Tetterby appointed a friend and La Creevy executors and trustees.

Mr Harthouse, who was a residual beneficiary of the estate, consulted a lawyer, Mr Guppy, who sought information from La Creevy about the administration of Mr Tetterby’s estate and advised La Creevy that Mr Harthouse was concerned at delays in receiving this information.

After Mr Harthouse received an interim distribution statement, Mr Guppy wrote to La Creevy questioning the expenses the executors charged the estate and referring to legal fees La Creevy had charged the estate and his earlier requests for invoices and timesheets.

When the requested information was not received, Mr Guppy lodged Mr Harthouse’s complaints with the Lawyers Complaints Service.

During the course of the committee’s inquiry into the complaint, Mr Guppy sent the Lawyers Complaints Service a copy of an email which said Mr Harthouse “has come under improper pressure to withdraw the complaint to NZLS and he is concerned that [La Creevy] has played some part in this”.

Fees fair and reasonable

Having commissioned a report from a costs assessor, who expressed a view that the fees La Creevy rendered were fair and reasonable in their entirety, the committee determined to take no further action in relation to that aspect of Mr Harthouse’s complaint.

However, the committee considered that La Creevy’s conduct in the course of its inquiry amounted to unsatisfactory conduct. That conduct followed an approach by a person known to both La Creevy and Mr Harthouse, who told La Creevy that he may be able to persuade Mr Harthouse to withdraw his complaint.

La Creevy subsequently prepared two notices for the person to put to Mr Harthouse to sign. The two notices were that Mr Harthouse wished to withdraw his complaint, and that Mr Harthouse request and direct that all correspondence relating to the estate be sent directly to Mr Harthouse and not through his solicitor, Mr Guppy.

Whilst the committee was satisfied that the suggestion that Mr Harthouse withdraw his complaint was not prompted by La Creevy, it determined that his subsequent correspondence, in conjunction with his drafting of the notice of withdrawal amounted to unsatisfactory conduct pursuant to section 12(b) of the Lawyers and Conveyancers Act 2006.

“[La Creevy] had improperly involved himself in an attempt to have the complaint about himself withdrawn,” the committee said.

The committee also considered La Creevy’s drafting of a document purporting to instruct that any future correspondence in relation to Mr Tetterby’s estate be directed to Mr Harthouse himself, instead of his solicitor, Mr Guppy, amounted to indirect communication with Mr Harthouse, a consequence of which was the potential circumvention of the purpose of Rule 10.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules, and the protections afforded to Mr Harthouse via his representative, Mr Guppy.

As well as censuring La Creevy and fining him $5,000, the committee ordered him to pay $3,000 costs.

LCRO upholds determination

On review, the Legal Complaints Review Officer (LCRO) upheld the determination of the committee.

It was “unprofessional for [La Creevy] to be involved to the extent he was in the attempts to effect the withdrawal of the complaint,” the LCRO said in LCRO 35/2018.

“For [La Creevy] to propose that he should communicate directly with Mr [Guppy]’s client, and to suggest that a third party obtain an authority from Mr [Harthouse] from him to do so was not conduct that lawyers of good standing would find acceptable.

“It could also be described as a breach of professionalism and discourteous to Mr [Guppy].”

The LCRO also ordered La Creevy to pay $1,600 costs.