Auckland Standards Committee 4 v Schlooz

JurisdictionNew Zealand
JudgeToogood J
Judgment Date24 August 2021
Neutral Citation[2021] NZHC 2185
Docket NumberCIV-2021-404-854
Year2021
CourtHigh Court

IN THE MATTER OF an appeal against a decision of the New Zealand Lawyers and Disciplinary Tribunal pursuant to s 253 of the Lawyers and Conveyancers Act 2006

Between
Auckland Standards Committee 4
Appellant
and
John Paul Timothy Schlooz
Respondent

[2021] NZHC 2185

Toogood J

CIV-2021-404-854

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Law Practitioners — appeal against a penalty decision of the Lawyers and Conveyancers Disciplinary Tribunal (“the Tribunal”) which suspended the respondent from practising for four months — misconduct — offensive, abusive and threatening communications with a self-litigant who was representing herself in proceedings against the respondent's client — Lawyers and Conveyancers Act 2006 — Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008

Counsel:

P N Collins for appellant

S R G Judd for respondent

JUDGMENT OF Toogood J

This judgment was delivered by me on 24 August 2021 at 2.30pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Introduction
1

John Paul Timothy Schlooz is an Auckland lawyer.

2

In March 2021, he admitted two charges of misconduct under s 7(1)(a)(i) and (ii) of the Lawyers and Conveyancers Act 2006 (the LCA) arising from offensive, abusive and threatening communications with a litigant who was representing herself in proceedings against Mr Schlooz's client.

3

On 14 April 2021, the New Zealand Lawyers and Conveyancers Disciplinary Tribunal delivered a decision in which it imposed penalties that included suspending Mr Schlooz from practice for four months from 17 April 2021. 1 As the Tribunal said, the decision concerned the proper disciplinary response when, while providing services that are regulated under the LCA, a lawyer corresponds with another person in an offensive, abusive and threatening manner. It also addresses the importance of the principles of general deterrence and denunciation in a regulatory framework, the purposes of which are to protect the public and maintain the confidence of the public in the legal profession. 2 Also, the decision considered the extent to which consistency of penalty can be achieved across a range of vastly different types of conduct and contexts in which that conduct has occurred. 3

4

The Auckland Standards Committee 4, which had laid the charges before the Tribunal, appeals against the period of suspension as being manifestly inadequate.

The facts
5

I adopt for the purposes of the appeal the informative summary of the factual background described by the Tribunal in its decision. It is regrettably necessary to repeat the language used in the offending correspondence in order to convey adequately the highly objectionable nature of the language used:

[10] The complainant, Ms Y, was the estranged wife of Mr Schlooz's close friend [redacted]. The practitioner had been friendly with the complainant

before she had separated from his friend and indeed had acted for her on one occasion.

[11] The complainant was acting for herself in relation to a number of disputes that she had with her former husband relating to property division, including her attempt to set aside a contracting-out agreement. There was also a tenancy dispute relating to the complainant's occupancy of a property which was owned by her estranged husband's trust, of which Mr Schlooz was a trustee. Further, there was a business dispute relating to a contract of services between the complainant and her estranged husband.

[12] From this it can be seen that the complainant was particularly vulnerable in that all areas of her life (relationship, housing, and employment) were impacted by her separation from, and ongoing dispute with her former husband, Mr Schlooz's close friend and how closely involved Mr Schlooz was professionally and personally.

[13] Mr Schlooz was acting for his friend Mr Y in relation to all of these disputes, although he initially denied that he was providing legal services and attempted to argue that he was acting in his personal capacity.

[14] The disputes generated much correspondence between the complainant and the practitioner, but the subject of these charges are the email exchanges between 15 May 2019 and 17 November 2019 in relation to Charge 1, and those from 1 February 2019 to 10 September 2019, in relation to Charge 3 (which deals with wrongful threats).

[15] … It is not necessary to repeat all of these [emails] in the body of the decision, however it is also insufficiently illustrative of the concerns raised by this case to simply describe them in bland terms such as “abusive”, “disrespectful”, or “offensive”. Therefore, we provide some of the worst examples as follows:

  • “I'll put this simply in terms you can understand, FUCK OFF.” (15 May 2019)

  • “You really are a moron.” (4 June 2019)

  • “Fuck off [redacted]. You're a sad old drunk who needs help. Don't flatter yourself that [redacted] is interested in your life. He's so much happier now that he's dumped you. I feel sorry for the guys you're trying to trap into a horrid life with you.” (14 July 2019)

  • “… In the land of the witless you would be Queen. You are the reason god gave us a middle finger. We regard you with an indifference that borders on aversion. If we throw a stick, will you leave? People clap when they see you; they clap their hands over their eyes. (17 November 2019)

    We are jealous of the people who haven't met you, now fuck off. Leave [redacted] in peace. He's much happier now that he doesn't not (sic) have to put up with your drunken self.” (17 November 2019)

  • “Just fuck off you pathetic old bag …” (17 November 2019)

[16] Further, Mr Schlooz, at various times, threatened Ms Y with bankruptcy, and the payment of costs.

[17] The complainant found the exchanges so distressing that she applied to the District Court for an Harassment Order, in September 2019. Following a defended hearing on that application on 15 May 2020, Her Honour Judge Bouchier made an order in the complainant's favour. The complainant points out that the judgment strongly endorsed her grounds for making the application.

[18] Importantly, Her Honour went on to make strong comments of condemnation about Mr Schlooz. She said at paragraph [19]: 4

“… I can only say that from when I first commenced working in the law, late in 1973 and throughout the 32 years I have (sic) on the District Court Bench, I have seen tens of thousands of family violence cases, gang violence cases, harassment applications, and any other type of violence with the associated language used in such incidents, and I say that I have never seen such an exhibition of gratuitous, focused and abhorrently rude and insolent language from one person to another in all those years, as I see in the correspondence of the respondent to the applicant. Plus, especially by a person who signs them self as a professional person, that is a barrister.”

[19] There was a further message in the decision conveyed by Her Honour to Mr Schlooz:

“I would find it astonishing that a person who uses such language in correspondence with any person, could possibly fulfil the criterion required of a barrister, of being a “fit and proper person”.”

[20] Remarkably Mr Schlooz did not seem to take to heart the professional implications of either the making of the order against him or indeed, the very clear denunciation of his conduct by an extremely senior District Court Judge.

[21] In his response to the Standards Committee he denied that he was acting in a professional capacity and suggested that he and the complainant were “… private individuals engaged in a war of words as a consequence of the breakdown in her marriage”. He went on to make personal and derogatory comments about the complainant in his response to the Standards Committee.

[22] It was not until Mr Schlooz engaged counsel, Mr Judd, that he amended his formal response to the charges before the Tribunal and admitted the two charges of misconduct now under consideration.

[23] By way of further background, during the period when this correspondence occurred, the practitioner was forming a new personal relationship himself, and together with his new partner was looking for a home they could purchase. In due course they did purchase an expensive home in order to accommodate their respective families, with 100 per cent mortgage

financing. These events, according to Mr Schlooz imposed considerable stress on him.

[24] In addition Mr Schlooz was a volunteer in a drug trial, which he said depleted his energy, gave him significant headaches and meant that he was unable to work at times for half a day. All of these matters he puts forward as explanatory of, although not excusing, his conduct and the correspondence with the complainant.

[25] The practitioner also acknowledged in his evidence to the Tribunal that he was personally involved in the dispute between the complainant and her estranged husband because of his close identification with his client, who he described as his “best friend”, and now accepts that caused him to lose judgement. The practitioner says that the emails, all of which are acknowledged by him, are significantly out of character.

The charges
6

The charges which Mr Schlooz admitted alleged that he had:

  • (a) been guilty of misconduct within the meaning of s 7(1)(a)(i) and (ii) and s 241(a) of the LCA, in that he had engaged in abusive, insulting and intimidating communications (rr 10 and 12 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 as in force at the relevant time (the Client Care Rules)); and

  • (b) been guilty of misconduct within the meaning of s 7(1)(a)(i) and (ii) and s 241(a) of the LCA, in that he had made threats for an improper purpose (rr 2.3 and 2.7 of the Client Care Rules).

7

Section 7 of the LCA provides, so far as is relevant:

7 Misconduct defined in...

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