Legal Complaints Review Officer v Hong
 NZLCDT 27
NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
Judge D F Clarkson
Mr G McKenzie
Mr K Raureti
Ms C Rowe
Mr I Williams
In the Matter of the Lawyers and Conveyancers Act 2006
Mr P Collins for the Legal Complaints Review Officer
Mr B Hong, respondent in person
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.
The issues were: whether the privilege against self-incrimination applied to H's statements to the LCS and LCRO pursuant to s186 LCA (Protection and privileges of witnesses); whether the complained of 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 made under it; 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.
Held: Section 186 stated that every person had the same privileges as witnesses had in a court of law in relation to the giving of information, evidence and the production of papers, documents, records, or things to a Standards Committee. The protection available “in a court of law” was contained in s60 Evidence Act 2006 (EA) (Privilege against self-incrimination). In turn “self-incrimination” was defined in s 4 EA as “the provision by a person of information that could reasonably lead to, or increase the likelihood of, the prosecution of that person for a criminal offence.”
The effect of the privilege was an entitlement to refuse to disclose information rather than a cloak of immunity once disclosure was made. That was confirmed by s 53(2) EA. In any event the privilege could not apply since it did not render H liable to prosecution for a criminal offence.
Further the privilege against self-incrimination ought not to apply to a lawyer's correspondence with regulatory bodies, because that would be inconsistent with s262 LCA which created an offence of wilful obstruction, hindering or resisting such regulatory bodies. Section 60 EA would be subject to s262 of the LCA since it was “an enactment [which] removes the privilege of self-incrimination expressly or by necessary implication”, where this related to obstruct of communications (s 60(3)(a) Evidence Act).
The statements made by H were undoubtedly connected with the provision of legal services. They were properly considered within the context of professional rather than personal misconduct pursuant to s7(1)(a) following the the broadening of this particular category by the decision in Orlov. In that decision the Court affirmed that ss 7(1)(a) and (1)(b) covered all conduct and there could not be a gap. This approach was affirmed in a further HC decision in . The emphasis in s 7(1)(b)(ii) was on conduct which was unconnected with regulated services.
The conduct complained of was comprised of communications with new lawyers for a previous client and with the former client directly. H's assertions in the correspondence at issue, directly arose out of the services provided by him to his former clients. Indeed the litigation about which he complained alleged negligence in relation to those services. The communications were in connection with regulated services
Nine pieces of correspondence were relied on. A letter to the instructing solicitor (of the complaining barrister, D) contained inappropriate threats. H had breached his obligations to treat fellow practitioners with respect. This was aggravated by the fact that the claim against him was that of the client, but the threats largely were towards the barristers personally, thus potentially creating a conflict of interest between the barristers and their clients.
A further email to the instructing solicitor accused H's fellow practitioner of character assassination and made a thinly veiled threat of how he would deal with that later. This correspondence at the very least breached proper standards of courtesy and professionalism. A letter to the instructing solicitor made allegations of incompetence and made inappropriate comments referring to professional indemnity insurance, which carried a threatening tone.
A fourth communication to the LCS continued H's tirade against the barristers who had issued the suit against him. He accused them of blatant errors, incompetence in the field of law, improper motivation in complaining about him, using such derogatory terms as “half fledged lawyers” and “amateurs”. H threatened that he would contact his former clients directly to “advise them of their right to have another senior counsel look into addressing these concerns with the New Zealand Law Society”. A practitioner of H's experience had to know the impropriety in approaching another lawyer's client, particularly in a situation such as this when the client was suing the practitioner himself.
The fifth correspondence showed a troubling lack of insight into his professional obligations in relation to his former clients who, rightly or wrongly, thought they had a cause of action against him; and in respect of his colleagues who once again he treated with discourtesy and disrespect. His comments were was highly improper and had to be viewed along with the other proven particulars.
In the sixth correspondence, an email to the LCS, H recorded that he had “reviewed D's performance in Court pursuant to 57 judgments of (sic) which he acted as Counsel”. H criticised D and proposed a wager relating to the civil proceedings involving his former clients. This communication, of itself, reached the level of “disgraceful and dishonourable” conduct as “viewed by lawyers of good standing”.
The seventh piece of correspondence was a letter of to the LCS lodging a cross-complaint about following the making of provocative comments by D, who referred to having just won a defamation judgment “another Kiwi — Chinese — a wannabe lawyer”. A lawyer was expected, in the face of such provocation, to act with dignified restraint.” H had clearly made a physical threat and this was totally unacceptable on the part of a member of the profession. The next correspondence to the LCS also repeated physical threats. H referred to D as mentally unstable and having threatened himself and others. This behaviour was seriously reprehensible and again, at the “disgraceful and dishonourable” level.
The final communication relied on was H's submission to the LCRO in which he purported to describe some of his unorthodox practices to achieve good outcomes for clients. In doing so, he revealed apparently knowingly, but without sensible insight, his own unethical practices on at least the occasion described. Even if H's motives for acting as he did were purely to assist his former clients, this did not excuse unprofessional conduct of any sort and certainly not at this level.
As to context, and the (serious) provocation provided to H by D, that might be more relevant at a penalty stage. Legal practice was stressful and personal attacks were difficult to cope with but could not justify a practitioner departing so far from the professional standards.
H had failed in his professional duty and, when taken cumulatively, there was no doubt that the conduct reached the standard of misconduct. The correspondence was over a period of time and therefore could not be excused as a momentary lapse or overreaction. Taken cumulatively the fact that there were nine pieces of what could be described as scurrilous communications, aggravated those individual instances. Misconduct as defined in s 7(1)(a)(i) was established.
If the wrong assessment of “disgraceful and dishonourable” was wrong, the LCRO had established, in the alternative, a “reckless breach” of the regulations cited.
The features which elevated this conduct from a mere dispute between practitioners were:
(a) persistent personal attacks;
(b) threats of menace;
(c) allegations of racism and mental illness; and
(d) the descent into unprofessionalism in the suggestion of a wager on the plaintiffs' case.
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