Legal Complaints Review Officer v Hong

• Jurisdiction: New Zealand
• Judge: Judge
• Judgment Date: 19 August 2015
• Neutral Citation: [2015] NZLCDT 27
• Docket Number: LCDT 025/12
• Court: Lawyers and Conveyancers’ Disciplinary Tribunal
• Date: 19 August 2015

In the Matter of the Lawyers and Conveyancers Act 2006

Between

Legal Complaints Review Officer

Applicant

and

Boon Gunn Hong

Practitioner

[2015] NZLCDT 27

CHAIR

Judge D F Clarkson

MEMBERS OF TRIBUNAL

Mr G McKenzie

Mr K Raureti

Ms C Rowe

Mr I Williams

LCDT 025/12

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

Charges of misconduct pursuant to s 7(1)(a)(i) and (ii) or in the alternative unsatisfactory conduct pursuant to s12(b) and (c) Lawyers and Conveyancers Act 2006 (LCA) — practitioner had become embroiled in a dispute with another practitioner, who complained of nine separate communications — charges had been brought following judicial review by the complainant challenging the Standards Committee and Legal Complaints Review Officer's (LCRO) decisions not to take further action, and the Tribunal's decision that the breaches did not reach the level which required a finding that the practitioner was not “fit and proper” or was “otherwise unsuited” to carry on practice — it was the seventh time the matter was before the Tribunal — whether the privilege against self-incrimination applied to the statements to the Complaints Service and LCRO pursuant to s186 LCA (Protection and privileges of witnesses) — whether the statements were “connected with the provision of regulated services” — whether the statements individually or cumulatively amounted to misconduct either as (a) “disgraceful or dishonourable”, or (b) comprising a “wilful or reckless contravention” of the LCA or its Rules or Regulations — if not, whether the conduct was unacceptable as (a) “unbecoming — or unprofessional” or (b) consisting of “a contravention” of the LCA, its Rules or Regulations.

Counsel:

Mr P Collins for the Legal Complaints Review Officer

Mr B Hong, respondent in person

DECISION OF THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

Charge

1 Mr Hong faces one charge laid with two alternatives namely:

• (a) Misconduct pursuant to s 7(1)(a)(i) and (ii);

• Or in the alternative

• (b) Unsatisfactory conduct pursuant to s 12(b) and (c) of the Lawyers and Conveyancers Act 2006 (“ LCA”).

2 The particulars relied on are set out in Appendix I to this decision. 1

Background and Procedural History

3 This case has a lengthy background and procedural history, which can be summarised as follows: In May 2010 Mr Deliu complained to the Lawyers Complaints Service (“LCS”) about correspondence Mr Hong had sent to two barristers in Mr Deliu's chambers, and to an instructing solicitor. The correspondence arose out of civil proceedings brought by former clients of Mr Hong, and now represented by the two barristers, in which Mr Hong was named as a respondent. Mr Hong considered the claim entirely misconceived and in his correspondence was attempting to have them withdraw it. Given that some time later the claim was struck out, Mr Hong points to the merits of his arguments. However, it is not the merits that we are asked to assess, but the manner of expressing himself – which included a number of threats and insults.

4 The two practitioners exchanged heated correspondence and subsequently Mr Hong also complained about Mr Deliu.

5 In correspondence with the LCS Mr Hong made further statements which form part of the current charges.

6 Meanwhile, the situation escalated between the two barristers. A counterclaim was filed in the civil proceedings. Mr Deliu brought defamation proceedings against Mr Hong seeking an injunction. This later settled on the basis of undertakings and Mr Hong engaged a private investigator to locate clients Mr Deliu had previously represented. In November 2010, having earlier offered mediation which was declined, the Standards Committee to which the cross-complaints had been referred decided to take no further action on either. 2

7 The decision relating to Mr Deliu's conduct rested there, but the cross-complaint against Mr Hong was taken on review by Mr Deliu to the Legal Complaints Review Officer (“LCRO”). That review confirmed the decision of the Standards Committee.

8 Then, in November 2011, Mr Deliu successfully sought judicial review of the LCRO's decision. In her decision of February 2012, to which we shall later refer, one of the reviewable errors found by Her Honour Winkelmann J was that the LCRO had taken account of Mr Deliu's (complainant's) behaviour as relevant to the complaint about Mr Hong. 3

9 Significantly, Her Honour found that, viewed as a whole, there was “ample cause for concern” about Mr Hong's conduct. She held:

“He engaged in offensive and intemperate correspondence. His conduct could not reasonably been described as trivial, nor the complaint frivolous or vexatious. Nor could it properly be characterised as a dispute “personal to the parties”, because it drew others into the dispute, including other lawyers and former clients of both Mr Hong and Mr Deliu, and the District Court. It wasted court resources. It had the potential at least to undermine public confidence in the profession.” 4

10 Her Honour went on to say:

“The fact that criticism can also be made of the complainant Mr Deliu is, in this context irrelevant. Although provocative conduct by another practitioner, (and Mr Deliu's conduct was undoubtedly provocative) may be relevant context to

conduct, no practitioner is justified in responding to the conduct of another in the way that Mr Hong did. If the Standards Committee felt that Mr Deliu's conduct was roughly equivalent to Mr Hong's, then they should have addressed that in the context of the complaint against him.” 5

11 The review application was remitted to the LCRO for reconsideration. After a hearing in May 2012 which both Mr Hong and Mr Deliu attended, the LCRO determined, in June 2012, to refer the matter to the Tribunal.

12 The LCRO (as “prosecutor”) preferred one charge of misconduct, laid under s 7(1)(b)(ii). This charge was laid prior to the decision of the full Court in Orlov. 6 In that case clarification was provided as to the breadth of circumstances in which a connection could be made to the “provision of regulated services”, therefore broadening the circumstances under which s 7(1)(a) could be pleaded. At the time of the first Tribunal hearing in February 2013 a more constrained view of the “provision of regulated services” was held and thus the LCRO had laid the charge under s 7(1)(b) as unrelated to the” provision of regulated services”. That section has a high threshold because a Tribunal must consider the conduct to be such as to require a finding that “… the lawyer is not a fit and proper person or is otherwise unsuited to engage in practice as a lawyer”.

13 The (previously constituted) Tribunal, while noting breaches of the CCCR, 7 did not consider these reached the level which required a finding Mr Hong was not “fit and proper” or was “otherwise unsuited …”. 8

14 The (previously constituted) Tribunal appears not to have considered the substitution of the lesser charge of unsatisfactory conduct. It dismissed the misconduct charge.

15 That decision was, in turn, taken on judicial review, not by the LCRO as prosecutor, but by Mr Deliu as complainant. 9 Thus there appears to have been no discussion about the complainant's standing to bring such proceedings, given that he would not have had status as an appellant ( s 253 LCA). This review was heard in

February 2015. In her decision of March 2015, 10 Her Honour Andrews J upheld the review on the basis of three reviewable errors

• “(a) The Tribunal proceeded under a mistake of fact, namely that Mr Hong had never before had a client complaint, in his many years of practice.

• (b) The Tribunal was in error of law in failing to exercise, or consider the exercise of its power to amend the charge or add a charge.

• (c) The Tribunal erred in failing to consider an alternative charge.”

16 The matter was remitted to this Tribunal for reconsideration (for the seventh time).

17 On the basis of Her Honour's findings, the LCRO had filed an amended charge, firstly to allege the conduct occurred in the course of “provision of regulated services”; and secondly to provide the Tribunal with the option of a lesser charge, in order that the error found in the previous decision would not be repeated.

18 Mr Hong objected to the amendments, arguing that the LCRO should not be afforded “a second chance at better prosecution”. However given the power accorded to the Tribunal to amend, 11 and having regard to the dicta in Orlov 12 and the dicta of Andrews J in the (second) judicial review of these proceedings, 13 we allowed the amendments as necessary and inevitable.

Issues

19 The issues to be determined in the present matter are:

• 1. As a preliminary question, as to the admissibility of the practitioner's statements to the LCS and LCRO, is there privilege to be attached to afford a protection against self-incrimination?

• 2. Are the statements in the Particulars relied upon made in the manner which is “connected with the provision of regulated services”?

• 3. Do the statements individually or cumulatively amount to misconduct either as (a) “disgraceful or dishonourable”, 14 or (b) comprising a “wilful or reckless contravention” of the LCA or its Rules or Regulations made under it? 15

• 4. If not, is the conduct unacceptable as (a) “unbecoming … or unprofessional” 16 or does it (b) consist of “a contravention” of the LCA, its Rules or Regulations? 17

20 Definitions and statutory provisions relied upon include the following:

7 Misconduct defined in relation to lawyer and incorporated law firm

• (1) In this Act, misconduct, in relation to a lawyer or an incorporated law firm,–

  • (a) means conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct –

    • (i) that would reasonably be regarded by lawyers of good standing as disgraceful or...