New Zealand Law Society - LCRO upholds no further action decision
Published on 9 November 2018
[Names used in this article are fictitious]
The Legal Complaints Review Officer has upheld a lawyers standards committee decision to take no further action on a complaint.
The lawyer, Gargery, acted for Mr Woodcourt on a relationship property matter.
Mr and Mrs Woodcourt were married in 1963. They separated in the mid-1970s and their marriage was dissolved in 1986. When they separated, Mr and Mrs Woodcourt jointly owned a residential property. They agreed at that time that Mrs Woodcourt, who had custody of their three young children, would have occupancy of the property.
When Mr Woodcourt first met Gargery, he informed him that Mrs Woodcourt had repaid the loan secured over the property. He said he wanted to transfer the property to Mrs Woodcourt, while also protecting the interests of their three children.
Gargery spoke with Mrs Woodcourt’s lawyer, who explained Mrs Woodcourt’s position, which reflected Mr Woodcourt’s instructions. Some days later, Mrs Woodcourt’s lawyer provided Gargery with a draft relationship property agreement (RPA).
Accompanied by his daughter, Mr Woodcourt had a meeting with Gargery, who left the meeting for five minutes or so to collect the RPA from Mrs Woodcourt’s lawyer.
After Gargery returned to the meeting, Mr Woodcourt’s daughter told Gargery that Mr Woodcourt would not sign the RPA until he had read and understood it.
Mr Woodcourt said he asked Gargery to explain the RPA to him, and that Gargery asked him to take the RPA away to read and to let Gargery know if he had any questions or - if he was happy with the RPA - to return it to Mrs Woodcourt’s lawyer’s office.
In response to a question from Mr Woodcourt’s daughter as to why it was necessary for Mr Woodcourt to take the RPA back to Mrs Woodcourt’s lawyer, and whether Gargery was “colluding” with Mrs Woodcourt’s lawyer, Mr Woodcourt said that Gargery ended the meeting.
Gargery said he considered Mr Woodcourt’s daughter “had her own agenda and contradicted [Mr Woodcourt’s] previous statements to [Gargery]” and had “adopted an adversarial attitude”. By accusing him of collusion, she had “impugned his professional integrity”. Gargery also said he was concerned that Mr Woodcourt was being “unduly influenced” by his daughter. For these reasons, Gargery said he could no longer accept instructions.
The daughter, on behalf of Mr Woodcourt, lodged a complaint with the Lawyers Complaints Service.
Among the issues raised in the complaint were allegations that Gargery had failed to provide Mr Woodcourt a letter of engagement along with procedures for handling complaints; failed to explain the RPA to Mr Woodcourt; and did not treat Mr Woodcourt fairly and respectfully.
The standards committee considering the complaint determined that no further action was necessary or appropriate.
The committee said it concluded from Gargery’s file notes that he gave Mr Woodcourt “appropriate advice”. There was nothing inappropriate in the meeting between Gargery and Mrs Woodcourt’s lawyer. Although Gargery’s manner when dealing with Mr Woodcourt and his daughter may have been abrupt “that of itself does not amount to unsatisfactory conduct”.
The work Gargery carried out before the meeting appeared to be of a “preliminary nature”, the LCRO said in LCRO 152/2017.
In circumstances such as these, where the retainer ended prematurely, it was open to argument that the requirement to provide Mr Woodcourt client care and service information had not yet arrived because Gargery had not carried out any work of a “significant” nature.
Although Gargery ought to have provided his letter of engagement to Mr Woodcourt earlier, “by a close margin, I do not consider that [Gargery]’s conduct warrants a disciplinary response,” the LCRO said.
“In my assessment of what appears to be trying circumstances for the parties at the meeting, it seems unlikely that the opportunity arose for [Gargery] to take [Mr Woodcourt] through the RPA and explain it to him then.”
That was consistent with both parties’ accounts that Gargery suggested that Mr Woodcourt take the RPA away to read and let Gargery know if he had any questions.
“It is my view that no issues of a disciplinary nature arise for [Gargery] on this aspect of Mr [Woodcourt]’s complaint,” the LCRO said.
In terms of the complaint that Gargery had not treated Mr Woodcourt fairly or respectfully, the LCRO said it was not possible for a decision-maker to prefer one version over another where the parties provided differing accounts as to what was said or not said.