DV v WE
 NZLCRO 47
Legal Complaints Review Officer, Auckland
Concerning an application for review pursuant to section193 of the Lawyers and Conveyancers Act 2006
Concerning a determination of the National Standards Committee
The names and identifying details of the parties in this decision have been changed.
Application for a review of a decision by a Standards Committee not to take any further action on a complaint by the applicant lawyer against the respondent lawyer— comments defamatory of the applicant on a website were attributed to an employee of respondent — whether the Standards Committee had failed to fully investigate the complaint — whether a negative reference sent by the respondent to the Law Society, in response to a notification in LawTalk that the applicant had made application for approval to practice on his own account, amounted to a vexatious complaint.
At issue was: whether the Standards Committee had failed to fully investigate the complaint; and whether a negative reference by WE to the Law Society sent in response to a notification in LawTalk that DV had made application for approval to practice on his own account amounted to a vexatious complaint.
Held: There had been minimal, if any, inquiry undertaken by the Committee. The Complaints Service of the New Zealand Law Society and/or a Standards Committee, had significant powers to assist it in investigations, as well as the power to require the person complained about to attend before it and to produce and provide various documentation. In this instance, the inquiry into the complaint was superficial, comprising a single response from WE. No steps appeared to have been taken to investigate any further, or to corroborate the allegations of DV or the denials of WE.
The reasons provided by the Committee for its decision did not relate in the main to the content of the website postings or address why WE had no responsibility in respect of those. The Committee recorded that there was no evidence that DV was a party to posting the defamatory comments, but no investigation had been undertaken by the Complaints Service and it was difficult to ascertain what the Committee's decision was based on and why it should prefer WE's denials and statements in preference to the allegations made by DV. This aspect of the complaint should be returned to the Committee for it to inquire into the complaint, and in particular to establish what degree of association with or control over the postings was exercised or was possible by WE.
The other aspect was the complaint by DV about the WE's act of sending to the Complaints Service the list of cases in which negative judicial comment had been made about DV. The initial correspondence from WE was sent in response to a notification in LawTalk that DV had made application for approval to practice on his own account. There was a mandatory obligation of a Practitioner to report misconduct (r2.8) and the discretion to report unsatisfactory conduct (r2.9). Those Rules provided that such reports were confidential reports, and although WE requested that his letter be treated as a formal complaint, the Complaints Service could, and perhaps more properly should, have treated this aspect of the letter as confidential. However it was treated, the relevance of these comments were that while DV had his views as to why the list was provided, it could equally be considered that WE was complying with this obligations under these Rules. The decision of the Committee in respect of this aspect of the complaint was confirmed.
Pursuant to s209 Lawyers and Conveyancers Act 2006, the Committee was directed to undertake an inquiry into the complaint made by DV in respect of the ABM postings to determine what degree of association and/or control was exercised by WE or was possible in connection with those postings, regardless of whether the author of those postings was an employee or not.
If the Committee determined that WE did have an association with or control over the postings, or did employ WD, then Committee would need to determine whether or not WE had breached rr10 or 10.1 Client Care Rules.
In November 2009 the Applicant lodged a complaint with the Complaints Service concerning remarks made on the “ABM” website about him. “ABM” is a web site which provides comprehensive information to the X community in New Zealand and both the Applicant and the Respondent advertised on that site. The site incorporated a facility whereby comments could be posted by persons who had access to the site and various comments had been posted on that site which the Applicant alleged were defamatory, and had been lodged by a person employed by the Respondent (Mr WD).
The Applicant attributes those comments as being responsible for the fact that he no longer received instructions from clients through that website whereas previously he had been receiving six to seven sets of instructions per month through that medium.
He also complained that the action of the Respondent in providing the Complaints Service with a list of cases which the Respondent says raised issues about the Applicant's competence, was malicious and an abuse of Law Society processes.
The Respondent responded to the complaint and confirmed the following:
1) That he did not direct or permit the comments on the website to be made;
2) That he did not permit or direct an employee to post any comments on the website;
3) That Mr WD had never been employed by his practice;
4) That he was not responsible for the comments made by Mr WD. He accordingly denied the allegations.
With regard to the list of cases provided, the Respondent noted that his complaint was based on the Applicant's general incompetence and inability to comprehend the basic principles of law.
On 27 July 2010 the National Standards Committee issued its decision. It determined to take no further action in respect of the complaint pursuant to section 138 (2) of the Lawyers and Conveyancers Act 2006. This section provides that a Standards Committee may decide not to take any further action on a complaint if, having regard to all the circumstances of the case, any further action is unnecessary or inappropriate.
The Committee particularly took note of the following:
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