Published on 9 November 2019

[Names used in this article are fictitious]

A lawyer who gave a client advice and assistance was found to be providing regulated services, despite the lawyer considering she was not yet engaged.

This finding of a lawyers standards committee was upheld by the Legal Complaints Review Officer (LCRO).

The client, Mr Summerson, consulted the lawyer, Dilber, on a challenge that had been made to the validity of an agreement for sale and purchase of a property.

Dilber outlined two possible options for Mr Summerson. The first option was making complaints to the police, Inland Revenue Department (IRD) or the Serious Fraud Office (SFO). The second option was to initiate proceedings.

Dilber offered to provide Mr Summerson with the names of contacts known to her at the police, IRD and SFO. She also provided Mr Summerson the name of a handwriting expert, explained how to make a complaint to IRD and made contact with a police liaison officer.

At a second meeting, Dilber agreed to her firm holding Mr Summerson’s folder of evidence for safe keeping.

Later, Dilber amended a document Mr Summerson prepared to send to the SFO.

Argument discounted

The standards committee discounted Dilber’s argument that because she had not opened a file, it followed that Mr Summerson had not engaged her to act for him and therefore she was not providing regulated services.

Her firm held Mr Summerson’s folder of evidence for safe keeping, and Dilber had edited and revised the SFO document. The committee was unconvinced by Dilber’s explanation that she hoped “this meant that she would eventually receive instructions”.

The committee made two findings of unsatisfactory conduct. The first was that Dilber had been engaged to provide regulated services and therefore the conduct fell short of the standard of competence and diligence of a reasonably competence lawyer. The second was that Dilber failed to provide Mr Summerson with the information that must be provided to a client before undertaking significant work on a retainer.

In the committee’s view, each case constituted unsatisfactory conduct under s 12(a) of the Lawyers and Conveyancers Act 2006 (LCA), namely “conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer”, and fined Dilber $2,000.

LCRO decision

“Overall, it is my view that [Dilber] was retained by Mr [Summerson], to whom she provided legal services on this matter,” the LCRO said in LCRO 189/2015.

It followed that Dilber was required to provide Mr Summerson with client care and service information.

Although the standards committee made findings of unsatisfactory conduct under s 12 (a) of the LCA, the LCRO considered that Dilber’s contravention was unsatisfactory conduct under s 12(c) of the LCA. The LCRO therefore reversed the committee’s findings and substituted unsatisfactory conduct under s 12(c) for failing to provide the information required by rules 3.4 and 3.5 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.

The LCRO also reversed the committee’s decision to fine Dilber $2,000. One reason was Dilber’s acknowledgment that she did not provide client care information because she believed, at the time, she was providing preliminary assistance. Further, at the time she dealt with Mr Summerson, she had only two years’ post admission experience, and she now appreciated the importance of sending client care and service information, terms of engagement and a letter of engagement to clients at the outset.

The LCRO ordered Dilber to pay $900 costs.