JurisdictionNew Zealand
CourtLegal Complaints Review Officer
Judgment Date13 April 2015
Docket NumberLCRO 207/2014
Date13 April 2015

Concerning an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006


Concerning a determination of the [Provincial] Standards Committee


LCRO 207/2014

Application by a practitioner for review of a Standards Committee's decision finding that his conduct was unsatisfactory pursuant to s12(b) and (c) Lawyers and Conveyancers Act 2006 — practitioner had sent an email to a police prosecutor stating that his client would be pleading guilty but he wanted the matter set down for a day when a particular judge was not sitting — had included a picture of a monkey as an attachment and after naming the Judge had said “see attached” — prosecutor said that practitioner appeared to be “judge-shopping”, and was unprofessional for having attached the monkey image — Committee considered that practitioner had not conducted his professional dealings with integrity, respect and courtesy, had not promoted and maintained proper standards of professionalism, had undermined the processes of the Court, was contemptuous of the judiciary, and had undermined its dignity — whether “judge shopping” could constitute unsatisfactory conduct — whether it was open to the Committee to decide that the practitioner had likened the Judge to a monkey — whether the penalty was manifestly excessive.

Mr DH as the Applicant

Ms EJ as the Respondent

[Provincial] Standards Committee New Zealand Law Society


Mr DH has applied for a review of a decision dated 29 August 2014 by the [Provincial] Standards Committee, in which the Committee found five breaches of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, and that his conduct was unsatisfactory pursuant to s 12(b) and (c) of the Lawyers and Conveyancers Act 2006 (the Act).


The Committee censured Mr DH, ordered him to pay a fine of $2,000, and $500 in costs and expenses to the New Zealand Law Society (NZLS).


Mr DH acted for a defendant in a criminal matter. Ms EJ had conduct of the file as police prosecutor. In the course of representing his client, Mr DH sent an email to Ms EJ, and Court staff, the substance of which said:

Hi All

I act for [client]. He is going to plead guilty to all charges. Currently the CRH date is 9 June.

Please bring the date forward to a Judge List day (preferably not one when Judge [TC] is in town – see attachment). I will be seeking a PSR.


Mr DH attached an image of a monkey.


Ms EJ forwarded the email to the NZLS expressing her concern that his email appeared to be “judge-shopping”, and was unprofessional for having attached the monkey image. Ms EJ said she was unhappy that her name was associated with his email.

Standards Committee

The Standards Committee considered Ms EJ's complaint and Mr DH's response. The Committee's concerns were that Mr DH had attempted to “judge shop”, had undermined the dignity of the judiciary, and failed to treat others involved in Court processes with respect. 1 The Committee also considered whether Mr DH had published something which was calculated to bring a judge into contempt, and whether, by his conduct, he had fallen short of proper standards of professionalism. 2


Mr DH responded to the complaint saying he did not intend to infer Judge [TC] was a monkey. He explained that his interactions with Ms EJ's predecessor had been humorous, and had included the exchange of animal pictures, initiated by Ms EJ's predecessor. He said his email was a light-hearted attempt to bring some levity to their work. He says the idea behind sending the picture was as a “cheeky humorous token supporting my suggestion (on instructions from my client), to put the case in a Judge's List when Judge [TC] is not sitting”. Mr DH says he respects the judiciary, has no reason to ridicule Judge [TC], and denies any suggestion of judge-shopping.


The Committee found that Mr DH had attempted to judge-shop, and did not accept his explanation for sending the picture. It considered that Mr DH had not conducted his professional dealings with integrity, respect and courtesy, had not promoted and maintained proper standards of professionalism, had undermined the processes of the Court, was contemptuous of the judiciary, and had undermined its dignity.


The Committee concluded Mr DH's conduct was unsatisfactory by the standards of lawyers of good standing, 3 and that he had breached practice rules made under the Act. 4 The Committee imposed orders under s 156(1) of the Act, censuring Mr DH, ordering him to pay a fine of $2,000, and costs of $500 to NZLS.


Mr DH applied for a review of the decision and orders.

Review Application

In his review application, Mr DH says the Committee's decision was unfair, unjust and incorrect. He alleges members of the Committee were biased against him, and says they are all part of the same close-knit community. He says the evidence does not support the decision reached, and the Committee's reasoning is flawed. Mr DH repeats that he was not shopping for any particular judge, but indicated a preference for someone other than Judge [TC] because “he is known for harsh sentencing of certain types of offending”. 5


Mr DH accepts that, on reflection, he could have attached a different picture “that could not have been misconstrued”, and refers to his practice of drawing smiley faces on notes he hands up to registrars in Court. 6 Mr DH says he has appeared before Judge [TC] many times, and has no reason to be disrespectful towards him.


Mr DH emphasises his view that the picture was intended to be a “cheeky humorous token”, and says the penalties imposed are manifestly excessive.

Role of the LCRO

The role of the Legal Complaints Review Officer (LCRO) on review is to reach her own view of the evidence before her. Where the review is of an exercise of discretion, it is appropriate for the LCRO to exercise particular caution before substituting her own judgement for that of the Standards Committee, without good reason.

Scope of Review

The LCRO has broad powers to conduct her own investigations, including the power to exercise for that purpose all the powers of a Standards Committee or an investigator, and seek and receive evidence. The statutory power of review is much

broader than an appeal, and gives the LCRO discretion as to the approach to be taken on any particular review and the extent of the investigations necessary to conduct that review
Review Hearing

Mr DH attended a review hearing in Auckland on 9 March 2015. Ms EJ was not required to attend and the review hearing proceeded in her absence.

Review Issue

Any concern about bias is met by the independence of this process of review, as are Mr DH's concerns about what he sees as deficiencies in the Committee's reasoning.


To some extent, Mr DH's intentions when he sent the picture are irrelevant, because the focus of the Committee's inquiry, and of this review, is on his actions.


I note Mr DH's acceptance, with the benefit of reflection, that the email and picture could have been misconstrued, and his evidence that he intended no disrespect towards the Judge. I also note his concerns about the impacts the decision has had on him, which he considers are disproportionate. However, those consequences are not matters that can be addressed in the process of this review.


The focus of this review is twofold: whether the decision was open to the Committee, and if it was, whether the penalties imposed are a proportionate response.


Judge Shopping


The Committee considered the allegation that by requesting his client's case not be called before a particular judge, Mr DH had been “judge shopping”. Judge-shopping is not identified in the Act, or in any of the rules made under it, as giving rise to any particular disciplinary concern. It is therefore necessary to evaluate the alleged conduct against the purposes of the Act, and fundamental obligations of lawyers, to ascertain whether it is conduct that should be discouraged through the disciplinary framework of the Act.


The Act's purposes and fundamental obligations of lawyers are set out at ss 3 and 4 of the Act and relevantly say:


Every lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations:

  • (a) the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand:

  • (d) the obligation to protect, subject to his or her overriding duties as an officer of the High Court and to his or her duties under any enactment, the interests of his or her clients.

  • (1) The purposes of this Act are –

    • (a) to maintain public confidence in the provision of legal services…;

    • (b) to protect the consumers of legal services…;

    • (c) to recognise the status of the legal profession….


As a lawyer, Mr DH was in a position of privilege in his interactions with the prosecutor and Court staff. Lawyers play an essential role in the administration of justice and upholding the rule of law. Lawyers' duties to the Court override the interests of their clients. Mr DH says he was following his client's instructions by requesting a Court date when a particular judge was not sitting. He says he was not shopping for a particular judge.


While I can accept his evidence on those points, it would not constitute a defence to an allegation that his professional conduct was deficient. The question is whether judge-shopping by a lawyer raises a professional conduct issue. Instinctively the answer is yes, but it is helpful to consider the New Zealand Courts' comments on the subject.


The High Court mentioned “judge shopping” in Deliu v National Standards Committee, 7 where, in relation to a recusal...

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