Legal rights
Lawyers
Introduction
Dealing with lawyers doesn't have to be difficult. Here are some guidelines to help you get the best from yours.
We spoke with several of our members who'd used a lawyer recently and found some common problems - lack of communication, surprise costs and confusion over bills being the main issues.
In this article, we explain your rights when dealing with lawyers, and tell you what you can do to resolve lawyer-client disputes.
Do you need one?
When you have a legal problem, ask yourself whether you may be able to resolve it without hiring a lawyer.
Disputes Tribunals are designed to settle problems in an informal and inexpensive setting. All parties are specifically barred from having legal representation (although a lawyer may advise you beforehand).
Community Law Centres offer free legal advice and some will represent you in a dispute. (See the White Pages for your nearest local branch.) You'll also be able to get advice on some problems from your local Citizens' Advice Bureau.
For free, plain-English guides to your legal rights on a wide range of topics, visit our Legal Rights section.
Excessive costs
We spoke with several of our members who'd used a lawyer recently and found some common problems.
Responses were varied. Some said their lawyers had bent over backwards to minimise costs and had done a good job while keeping the client well informed. But other members experienced huge costs, bad communication, slow progress and a generally unhelpful demeanour.
The most common complaint was excessive fees. Many people didn't realise until too late (when they got the bill) just how much their lawyer was going to cost.
Talk about it
Discuss costs with your lawyer at the outset. Ask for an estimate of likely costs before confirming you want the lawyer to act for you. Ask for their hourly rate, and whether they charge in part hours or only whole.
Check that the estimate includes disbursements (such as photocopying and toll charges). Don't assume these won't run to much - court filing fees (charged for any litigation) are now substantial.
Estimates are pretty easy if yours is a standard job with a fixed cost, such as conveyancing or drawing up a simple will. But complex work can be harder to pin down. If you get an estimate and not a quote, tell your lawyer you want ongoing updates of cost.
GST
We've had many complaints about lawyers not specifying whether quotes and estimates include GST. Under the Fair Trading Act, if they are silent on GST, you have the right to assume it is included. Lawyers should know this, but to avoid a dispute later, we suggest you check.
DIY?
Ask whether you can do anything yourself, such as tracking down documents.
You can minimise the time you spend with your lawyer (and hence the expense) by writing down all the facts of your problem in advance, being well prepared for any meeting and giving the lawyer all relevant documents.
You can also save money in the long run by seeing a lawyer before you sign important documents.
Don't question me
Some members questioned fees and were then billed for the time the lawyer spent justifying the fee or itemising the account. One member's lawyer charged $300 for answering a letter of complaint! We think this is unfair and the NZ Law Society says billing for time spent defending a fee is "unprofessional".
Shop around
As with any other service, check out your options. Our past surveys of conveyancing costs have shown a huge price variation among firms.
Poor communication
Some members said they felt left in the dark about what their lawyer was actually doing on their behalf. Some said their lawyer had to be kept under constant pressure to do anything at all.
One member suffered her lawyer's "complete refusal to communicate with me in a way that suited me". Another couldn't get beyond her lawyer's secretary. "The secretary functioned as a true watchdog. I had no access to our lawyer."
Talk about it
Before you accept a lawyer, discuss what sort of reporting you expect and ask how long the job will take. You don't need a detailed report on the technicalities, just a regular, plain-language update.
Remember, you'll probably be charged for the reporting time.
Legal aid
If you can't afford a lawyer, you can apply to the Legal Services Agency for legal aid, which is usually treated as a loan to pay all or part of your legal fees. You'll be eligible only if you have a low income and no valuable assets (excluding your own home).
The agency will also consider the type of legal problem you have, and if the application is for civil legal aid, the likelihood you would win your case. If the application is for criminal legal aid, the agency will consider the seriousness of the charges faced.
Ask your lawyer whether you could be eligible.
Getting redress
Exorbitant fees
If you're not happy with your lawyer's bill, discuss it with them directly. Tell them you're dissatisfied and ask for an itemised account (if you haven't already received one). One of our members recently received a bill for $1650 after her lawyer and an assistant met with her for 45 minutes and subsequently wrote a letter on her behalf. She thought the work was worth about half that and sent a cheque for $830 - which was accepted by the lawyer.
If you can't resolve the problem, you can complain to your local district law society, which runs a free "costs revision scheme" for reviewing disputed accounts. You have six months from the time you receive the bill to make a complaint.
However, the society will not review a bill that has already been paid unless the fee was deducted from money held for you in the lawyer's trust account.
Taking fees by deduction
A high court decision in 2007 found that if your lawyer is holding funds for you, they cannot deduct their fee without your express authority. Your lawyer also can't refuse to finish the work that you asked them to do just because you haven't paid the bill.
Sloppy conduct
You may also complain to the local district law society about a lawyer's conduct. These complaints may be referred to a disciplinary tribunal and can ultimately result in a lawyer being censured, fined or struck off the roll of barristers and solicitors (meaning they can no longer practise).
If you are not happy with the society's handling of your complaint, you can take it up with a local lay observer. These non-lawyers are appointed by the government to investigate complaints to the law society that are not resolved to the client's satisfaction.
Consumer Guarantees Act
The Consumer Guarantees Act guarantees lawyers' services must be carried out with reasonable care and skill, work must be done within a reasonable period if a set time is not agreed in advance, and the price must be reasonable if not agreed in advance.
If you think your lawyer has breached the Act you may be able to take a claim to a Disputes Tribunal, which can hear claims involving up to $15,000 (or $20,000 if both parties agree). You must abide by the tribunal's decision.
Fight fire with fire If you're still not happy, or if you think your lawyer has caused you serious losses, consider hiring another lawyer to take further action.
Case study
When Julie and Mark Miedema (pictured) of Auckland were buying their house in 2000, they called several lawyers for estimates of the conveyancing costs. The firm they chose quoted $800, including disbursements.
Just before the sale went through, the Miedemas deposited the purchase price into the firm's trust account, along with $2000 to cover the estimated fee and their share of rates owing on the property. They'd been told it was normal practice to deposit more than the expected charges and that they would receive a cheque for the difference after settlement. The rates came to $380, so Julie and Mark were expecting to get back around $800.
About a month after moving into their new home, the Miedemas were surprised to receive a bill from the lawyers asking for a further $480. When they complained that they'd been expecting a refund, they were told the final fee had come to $2100 - even though the purchase had been straightforward.
The Miedemas wrote to the firm several times asking for their refund. Getting nowhere, they asked the Auckland District Law Society to review the fee. The society's cost revision committee arranged for the Miedemas and their lawyer to attend mediation, and eventually decided that in the interests of fairness, the fee should have been consistent with the estimate. The bill was revised down to $825. A year after they'd first complained, the Miedemas received a cheque from their lawyers - for just under the $800 they'd expected from the beginning.
More help
Legal Services Agency: www.lsa.govt.nz
NZ Law Society: www.nz-lawsoc.org.nz
District Law Societies: See your White Pages.
Community Law Centres: See your White Pages.