Your lawyer can’t ‘sack’ you without your consent

‘Difficult’ clients sometimes find themselves without a lawyer after they reject the lawyer’s advice or are impolite to the lawyer, or if they want to progress proceedings in a way that the lawyer disagrees with.

In New Zealand (unlike several overseas jurisdictions), lawyers are not allowed to cease acting for a client for that reason.

Yet I have had several clients over the years whose lawyers have ceased to act for them without ‘good cause’, sometimes leaving them in the lurch at a crucial stage in Family Court proceedings.

This blog is intended to clarify the situation, both for clients and for lawyers. It is drawn from rule 4.2 of the Conduct and Client Care Rules 2008.

A client can easily end the lawyer-client relationship

A client may terminate the retainer (i.e. sack the lawyer) at their own discretion, unless they are legally aided (and want to change to a different lawyer) or have not paid their current lawyer.

If the client is legally aided, the Legal Aid Service has to agree to transfer the legal-aid grant to the new lawyer. Approval is not automatic or unlimited.  Transfers cost money because the new lawyer has to be paid to familiarise themselves with the file and the client, and also to prepare paperwork to notify the court and other parties of the change of representation.  Legal Aid also want clients to listen to their lawyers’ advice, not shop around to try to find a lawyer who tells them what they want to hear.  (A private client can spend their own money on hopeless cases if they want to. That’s different from spending the taxpayer’s money.)

If the client has not paid their current lawyer, the current lawyer is not obliged to release the client’s file, although they are still required to provide access to the client’s ‘personal information’ under the Privacy Act.

A lawyer may NOT easily end the lawyer-client relationship

A lawyer may terminate the retainer (i.e. sack the client) if the client agrees. No client should agree unless they already have another lawyer in place, especially when there are current court proceedings or other urgent issues.

If the client does not agree, a lawyer may only terminate the retainer (a) for ‘good cause’; and (b) after giving reasonable notice to the client, including specifying the grounds for intended termination.

If the lawyer does terminate the retainer, the lawyer must also give reasonable help to the client to find a new lawyer.

In litigation matters (court proceedings), ‘good cause’ does not include ‘the adoption by the client against the advice of the lawyer of a course of action that the lawyer believes is highly imprudent and may be inconsistent with the lawyer’s fundamental obligations’.  It is the lawyer’s job to provide clear advice. The client then makes the decision.

The lawyer is required to act on the client’s instructions and do her best to achieve the outcome sought by the client. (A prudent lawyer will ensure this is fully documented.)

If the client is legally aided, the lawyer is  required to inform Legal Aid of changes in the prospects of success or of actions by the client that undermine their own case; and legal aid may be withdrawn. In that case the lawyer may then have grounds to terminate the retainer unless the client is able to pay the lawyer’s fee privately.)

However, if a client’s instructions require the lawyer to breach any professional obligation, and if the client will not withdraw those instructions, the lawyer may terminate the retainer.

If a client cannot or will not pay the lawyer’s fee, according to what has been agreed, or (if there was no agreement) on a reasonable basis, then the lawyer may terminate the retainer.  The lawyer first has to give the client a chance to rectify the problem. The lawyer also has to take due regard of the lawyer’s fiduciary duties to the client (such as – for instance – ensuring the client is informed of the next steps and due dates in the proceeding) and give the client enough notice to be able to arrange alternative representation.

If a client misleads or deceives the lawyer in something that matters to the case, the lawyer may cease to act.

If a client ‘fails to provide instructions in a sufficiently timely way,’ the lawyer may cease to act. The phrase ‘failure to provide instructions’ is ambiguous. It is traditionally used orally to tell the court the client has not paid counsel’s fee. However, its literal meaning is relevant here: a lawyer may terminate the retainer if the client does not provide adequate information or decisions when needed. Again, the lawyer should first give the client an opportunity to rectify the situation.

In itself, being too busy (having an excessive workload) is not good cause to terminate a retainer. The lawyer ought not to have accepted the instructions in the first place (rule 4.1). The client – or taxpayer through legal aid – ought not to have to pay twice because the lawyer is too busy. It may be possible to negotiate an agreed transition if the lawyer refunds fees already paid or agrees to pay the new lawyer’s fees for becoming familiar with the case. The client is not obliged to agree to this.

The rules make it clear that ‘personal attributes of the client’ are not good cause to terminate the retainer. Nor are ‘the merits of the matter upon which the lawyer is consulted’.

The fact a client is difficult to communicate with, obtuse, or even obnoxious is regarded as a normal incident of professional practice and not grounds for ceasing to act.’  (D Webb, Ethics, professional responsibility and the lawyer, 2nd ed, [5.8.2], from McDonald v FAI (NZ) General Insurance Co Ltd [1999] 1 NZLR 583 (overturned on other grounds by the Privy Council).

The list in rule 4.2 of what constitutes ‘good cause’ is not exhaustive.

Other grounds in case law include:

  • continuing engagement in the matter is likely to have a seriously adverse effect upon the lawyer’s health (Forney v Bushe (1954) 104 LJ 604, cit G E Dal Pont, Lawyers’ Professional Responsibility, 3rd ed, [3.160]);
  • the client or the lawyer has died or become insane (Dal Pont, [3.165], referring to Whitehead v Lord (1852) 7 Ex 691; 155 ER 1126 (death of client enabled the solicitor to recover his costs before the action was terminated), and McVey v Denis (1984) 55 ALR 201 (CA(NSW)) at 204 (death of client).

 

Cheryl Simes

23 June 2018

‘Care and protection’ – confusion about without-notice uplifts, family group conferences, and s67 ‘declarations’

When Oranga Tamariki social workers and police uplift children without notice, often using deception to gain access to the children, parents and families are justifiably enraged, shocked, and indeed beside themselves. Families’ and parents’ reaction may then make things worse and be used against them in subsequent court proceedings.

All of that is bad enough.

What makes everything worse is confusion about the relevant law.

It is almost impossible for a lawyer to explain to a distressed parent how the phrase ‘in need of care and protection’ is used through different stages of the process. That parent is then likely to be contradicted by lawyers and FGC Co-ordinators who have themselves been misadvised about the relevant law.  (Law-society training sessions have sometimes got this wrong. So have some judges. It is not the individuals’ fault. It is not a conspiracy against a particular parent or family. It is a systemic problem that needs correction.)

This blog may help parents and lawyers facing this situation.

Temporary court order to permit uplift of children

In general terms, to get an order to allow them to uplift children, Oranga Tamariki (OT) social workers have to satisfy a court that:

  • at the time of making the application, the children are more likely than not to be at risk of physical, sexual or emotional harm if OT does not intervene (this is my simplistic paraphrase of the statutory definition of ‘in need of care and protection’ – you can read the full statutory definition here, in Oranga Tamariki Act s 14)
  • other options are not practicable or will put the children at risk (often the perceived – and real – risk is that the parents will run and hide with the children, if an application is served on the parents before the court makes an order)

Usually the Family Court will err on the side of safety and make the temporary order requested.

This is not a definite decision about whether OT’s intervention will continue to be needed. The parents are able to challenge these temporary decisions by the Family Court.

Next steps

A Family Group Conference is required urgently, unless one has already been held. (See below.)

The parents also have 7 days to file a notice of intention to appear’ in the Family Court (and send a copy to OT), to say they dispute the allegation that the children are ‘in need of care and protection’.

They can also apply to discharge the temporary custody order that allowed OT to uplift the children.

However, these documents will not be considered instantly (unlike the original applications by OT).  It would require truly exceptional reasons to get the court to look at cancelling the uplift decision without going through several weeks (or sometimes months) of procedural steps.

Therefore the parents need to get help to stay calm and cope with the system.  It will take time.

As well as a good lawyer, the parents and families need strong emotional support and self-discipline, to avoid making things worse while they are in the reactive phase.

Family Group Conference

FGC – ‘care and protection’ agreement does not mean agreement to a s67 declaration

A family group conference is an opportunity to come up with a plan to address whatever care-and-protection issues exist.

However, in order to start discussing a possible plan, the people attending the FGC first have to agree that the children are ‘in need of care and protection’. (OTA s28(b). This is really unfortunate wording because it creates much confusion and heartache and, in practice, gives OT more power than it was intended to have.

Agreeing at an FGC that the children are ‘in need of care and protection’ does NOT mean the FGC is agreeing that the social workers got everything right, or that the uplift was justified. Even more significantly, it does NOT mean the FGC agrees to the making of a s67 ‘declaration’.   All it means is that the FGC agrees that – as at the time of the FGC itself – there are care-and-protection issues for the children that need to be addressed, and that the FGC wants to try to make a plan to address those issues.   (Even if people at the FGC cannot agree that there was any basis for OT’s actions, they can usually agree that the children are (now) at risk of emotional and psychological harm (because they have been uplifted). That agreement can be enough to allow those present to try to make a plan that will address the children’s genuine needs, looking forward instead of angrily going through the minutiae of what happened at the uplift and how upset and humiliated people felt by it.)

In my experience, many FGC Co-ordinators and even senior family lawyers do not understand this point.  Nor do a number of lay advocates and support groups who help parents to deal with OT. This is tragic – because it means FGCs often reach ‘non agreement’ instead of coming up with an effective solution.

Unless the FGC specifically and expressly agrees that a s67 declaration should be made, agreeing that the children ‘are in need of care and protection’ must not be treated as agreement to the making of a declaration.

The FGC Co-ordinator is required to provide a written report to participants, agencies and persons affected by the decision, and the Family Court, about decisions, recommendations and plans (if any) by the FGC. (OTA s 29(3) and s 32. Anyone who attended the FGC must check whether this report is accurate. It must not say the participants agreed to a declaration, unless that actually occurred.

FGC – privileged, and absolutely no publication at all

There are particularly strict rules about FGC confidentiality. What is said at an FGC is (a) privileged and (b) must not be published.  Except for the report by the FGC Co-ordinator, nothing that occurs at an FGC can be disclosed in court or in an affidavit.

Unless it is for statistical or bona fide research purposes, under OTA s38(1) it is a criminal offence to publish any report about the proceeding of an FGC – even if you do not include any information that would enable children or adults to be identified.  Therefore, for example, you must not mention anything that happens at an FGC on social media, even if you do not identify anyone involved .

Even if you are publishing something for statistical or bona fide research, it is still a criminal offence under OTA s38(3) to publish if it contains information that would enable someone else to identify someone who was at the FGC or who was the subject of the FGC.

Criteria for a s67 declaration

Unless the parents agree to the making of a s67 declaration (or take no steps to defend it), a Family Court hearing will be necessary. As a generalisation, that hearing is supposed to start within 60 days of the OT application being filed in court (which is often the day the children were uplifted): OTA s200. In practice it often takes longer for it to be scheduled.

Under OTA s73, the criteria for making a s67 declaration are – at the time of the hearing:

  • the children are ‘in need of care and protection’ (at least one of the subsections in OTA s 14) – this does not have to involve actual or even prospective physical harm – it can involve the children being likely to be harmed emotionally – however, there has to be a current need
  • the children’s ‘need for care and protection’ cannot be met by ‘other means’ (i.e. without having ongoing OT involvement) – ‘other means’ (NOT a ‘declaration’) can include implementing a plan or decision of an FGC (OTA s73(1)
  • OTA section 73(2) specifically requires the Court, in most cases, to take into account any evidence that the kind of harm suffered by the children will neither continue nor be repeated
  • the Court is also required, in most cases, to take into account any evidence that a parent or guardian of the child is capable of ensuring the harm will neither continue nor be repeated.

If there are major factual disputes about the information OT has put forward, those disputes need to be decided by a Judge, because that OT information will be relied on in subsequent planning unless it is disproved.  If it has not been challenged at this early stage, it will probably be too late to challenge it later.

On the other hand, if the picture painted by OT is pretty accurate despite some errors, and if the issues can only be solved with OT assistance or funding, it can be better to consent to a declaration and focus instead on the plan for what happens next.

What happens next, if a s67 declaration is made?

If a s67 declaration is made, OT have to develop a care-and-protection plan. For cases that have reached the Family Court, that usually includes wanting the children to continue to be in OT custody even if the children are going to be placed back with their parent/s.

It is more helpful for parents and family to co-operate with the making of a plan, than to oppose everything the social workers try to do.

The Family Court decides whether to approve the plan.

Again, the attitude of the parents and family is crucial.

Opposition – if any – needs to be well founded and with strong, realistic, alternative proposals to address the issues that – by this stage – are no longer open to challenge in themselves.

Access orders, restraining orders, support orders, service orders, counselling orders, custody orders

These are beyond the scope of this post.

Use of information in this post

The comments in this post are intended for general readership, are a bit simplified, and should not be relied on as legal advice for a specific situation.

Readers are invited to share this post with lawyers and other legal advisers, and on social media, and also with family who may be planning to attend an FGC, and with FGC Co-ordinators if there is a dispute about what is meant by agreeing that a child is in need of care and protection. I am happy to provide more detailed information to lawyers and FGC Co-ordinators on request.

If I have misstated the law at any point, I invite correction.

Cheryl Simes

29 November 2017