The complainant had contacted a law firm regarding an application for probate and the possibility that she be appointed as executor for her father’s estate after he had passed away. A junior at the law firm quoted a price of $2,200 (plus GST and disbursements) for an application for probate and noted that a letter of engagement would be sent shortly. 

The complainant responded that the fees estimate seemed high and had inquired as to whether she could apply for probate herself or do anything to reduce this fee amount. Following this correspondence, the law firm contacted the complainant on three further occasions, firstly implying that the complainant needed them to do the work and asking if the complainant would like the firm to take instructions. The complainant replied and stated that the law firm’s services were not needed. The law firm then sent her an invoice for $561.20.

The complainant objected to this invoice and maintained that she had never accepted the letter of engagement. The complainant stated that the law firm had charged her for providing a fee estimate to carry out work that did not need to be undertaken and that if she had to pay the invoice to avoid it being referred to debt collectors, she was going to share her experience on a community notice board.

Another senior lawyer at the law firm responded by email and stated that the invoice was for legal advice and any post on a community notice board would be considered to be defamatory. He expressed he may have to take the matter up with the police.  A few weeks later the lawyer emailed the complainant again asking why the invoice was still not paid and stating that he had no option but to hand the matter over for collection.

The complainant subsequently complained about the misleading advice and bullying conduct of the senior lawyer.

The Committee considered whether the conduct of the senior lawyer breached professional standards when he informed her that he would be engaging debt collectors, would take action against her for defamation and would report her to the police for blackmail. The Committee found that this email was “highly inappropriate” and was a clear breach of professional standards. The Committee determined, pursuant to s 152(2)(b) of the Lawyers and Conveyancers Act 2006 (the Act), that there had been unsatisfactory conduct on the part of the senior lawyer in terms of s 12(b) of the Act.

The Committee then considered whether the lawyer had supplied the written terms of engagement and client care information before commencing work on a retainer, as required under Rules 3.4 and 3.5 of the Lawyers and Conveyancers (Conduct and Client Care) Rules 2008 (the Rules). While the lawyer believed that he had been engaged to act for the complainant, he did not provide her with written terms of engagement. Ultimately, the Committee determined that the lawyer was not engaged to act for the complainant. Therefore, no breach of the Rules occurred. The Committee determined, pursuant to s 152(2)(c) of the Act, to take no further action on this issue of complaint.

The Committee also considered whether charging the complainant a fee was unsatisfactory conduct in terms of section 12(b) of the Act, having regard to s132(1) of the Act. The Committee found there were “special circumstances” allowing it to deal with a complaint about a fee under the $2,000 threshold. It agreed that the complainant’s emails were only inquiries and therefore the lawyer was not entitled to charge a fee. The Committee determined, pursuant to s 152(2)(b) of the Act, that there had been unsatisfactory conduct on the part of the lawyer in terms of s 12(b) of the Act.

In deciding a penalty, the Committee noted that the law firm issued an invoice when it was not entitled to do so, and the lawyer showed a lack of insight into his unprofessional and inappropriate conduct. The lawyer was ordered to pay a fine of $5,000.

The Commitee also ordered the cancellation of the lawyer’s invoice to the complainant, for the lawyer to refund any amount already paid by the complainant and, pursuant to section 156(1)(n) of the Act, to pay to the Law Society an amount of $1,000 in respect of costs and expenses.