MR BC v MR YT

 
FREE EXCERPT

[2011] NZLCRO 20

LCRO 215/2010

CONCERNING An application for review pursuant to Section 193 of the Lawyers and Conveyancers Act 2006

and

CONCERNING a determination of the National Standards Committee

BETWEEN
MR BC of Auckland
Applicant
and
MR YT of Auckland
Respondent

Mr BC as the Applicant

Mr YT as the Respondent

The National Standards Committee

The New Zealand Law Society

Application for review of National Standards Committee decision — applicant practitioner made a complaint about certain aspects of a complaint lodged by respondent practitioner against applicant — applicant complained respondent had been careless, reckless or had lied inalleging that the Court had been critical of applicant in a number of cases — applicant alleged respondent had made a material misrepresentation to a regulatory body that was known to be false — whether Committee erred in its view that there was no merit in the complaint.

The names and identifying details of the parties in this decision have been changed.

Held: The Lawyers and Conveyancers Act (Lawyers Conduct and Client Care Rules) 2008 (“LCCCR”) provided that all practitioners had a mandatory obligation to report misconduct of other practitioners and a discretionary duty to report unsatisfactory conduct-r2.8 and r2.9. The rules enforced and facilitated the obligations of all practitioners to ensure that the integrity and reputation of the profession was upheld.

In making a report under those rules the practitioner was only required to have “reasonable grounds to suspect” that another had been guilty of misconduct/unsatisfactory conduct. The practitioner was not required to adduce all the evidence necessary to support the matters raised in the report; that was the role of the Law Society. In respect of an own motion investigation, which is what this became when the Law Society decided to investigate matters, the Law Society became the complainant, assuming full responsibility to investigate. It was entirely proper for the Law Society to correct or add to the information received.

Rule 2.10 provided that “a lawyer must not use, or threaten to use, the complaints or disciplinary process for an improper use.” The respondent's “suspicion” was validated by the Law Society's decision to investigate further and by the Standards Committee having resolvedtolay charges against the applicant before the Lawyers and Conveyancers Disciplinary Tribunal in respect of his conduct in a number of the cases identified by the Respondent. The applicant's complaint against him could go no further.

It was understandable that the applicant would react unfavourably to comments made by the respondent in correspondence, but consideredobjectively the comments amounted to little more than “name calling” and were “trivial remarks” as categorised by the Committee. Both theapplicant and the respondent would do well to make reference to R10 and R10.1 LCCCR (proper standards of professionalism, respect and courtesy) in future correspondence.

Committee decision confirmed.

DECISION
Background
1

This is an application for the review of a decision made by the National Standards Committee concerning a complaint made by the Applicant about certain aspects of a complaint lodged by the Respondent about the Applicant.

2

The genesis of the complaint by the Respondent was contained in correspondence from him to the Complaints Service of the New Zealand Law Society dated 16 September and 2 October 2009. With these letters, the Respondent had provided a list of cases in which he alleged that the Applicant had been criticised by the Courts.

3

He also complained about the contents of affidavits sworn by BD (BD) (the Applicant?s secretary) which he described as contemptuous, disdainful, and condescending. It is to be assumed that he means contemptuous, disdainful and condescending towards the Court. That complaint was directed against BD and the Applicant who he suspected of providing the input into the affidavit language and content.

4

The Applicant then lodged a complaint against the Respondent in respect of matters arising out of those complaints. The issues were summarised in the letter dated 3 December 2009 from the Complaints Service to the Respondent, and were as follows:–

  • •Gross incompetence and failing to adhere to a minimum standard of diligence in accusing the Applicant.

  • •Making a complaint without merit against BD.

  • •Making a complaint which is frivolous or vexatious or not made in good faith.

  • •The gross abuse of process using the Complaints process to attack the Applicant.

  • •Failing to provide the Society with a relevant subsequent judgment.

  • •Abusing the Complaints Service by attempting to make a complaint against BD which was impossible in law.

5

The basis for the Applicant's complaint as it related to the list of cases provided by the Respondent, is that the Respondent had been careless, reckless or had lied when alleging that the Court had been critical of the Applicant in all of those cases, as he had not appeared as counsel in four of them.

6

He considers that this is a serious matter in that if a similar approach were to be adopted by the Respondent in his dealings with the Court, then the integrity of the justice system would be severely compromised. He was also critical of the Respondent for not providing a favourable Court of Appeal decision in respect of one of the cases referred to. The Applicant alleged that the Respondent was selective in what he supplied to the Law Society.

7

The Applicant is also offended by the accusations made by the Respondent, and considers that the Respondent is using the Complaints procedure to conduct a vendetta against him in particular, while at the same time paying no heed to the shortcomings of other practitioners.

The Standards Committee decision
8

The National Standards Committee considered the complaint at its meeting on 16 September 2010. It resolved that no further action was required pursuant to Section 138(1)(b) of the Lawyers and Conveyancers Act 2006 as the subject matter of the complaint was trivial. Having regard to all the circumstances of the case and pursuant to Section 138(2) of the Lawyers and Conveyancers Act, the Committee was also of the view that there was no merit in the complaint and that any further action was unnecessary or inappropriate.

The Application for Review
9

The Applicant applied for a review of the Standards Committee?s decision.

10

He intimated that his concern was primarily focused around the fact that the Respondent attempted to commit a fraud in his complaint against him or, de minimis was grossly reckless in accusing the Applicant without cause of having acted wrongfully in four cases where he did not appear as counsel.

11

He accused the Respondent of scurrilous behaviour of the highest order in that he had used his client to look for “dirt” on the Applicant.

12

He also submits that the Respondent acted in bad faith in lodging the complaint in that it constituted a personal attack on the Applicant and one of his staff members.

13

It is useful to record here that the Applicant advised that by “fraud” he means “a material misrepresentation to a regulatory body that is known to be false”. Similarly, although it is not directly relevant at this point, he advised that by “corruption”, he means circumstances in which a regulatory body does not function in the way it should, and likened it to the “corruption” of a computer file.

Procedure
14

In his letter of 26 October 2010 which accompanied the application for review, the Applicant advised that he wished to be heard in person in support of his application. He also advised that he would be making submissions before the hearing.

15

It was considered that it was not necessary to hear from the Respondent as the Standards Committee file received by this Office contained correspondence and submissions from the parties in connection with the matter sufficient for the purposes of this review. Consequently, it was proposed to hold an Applicant-only hearing, the nature of which is set out in the LCRO Guidelines.

16

The Applicant objected to this, and by email dated 19 January 2011, reiterated earlier requests for “reasons why this particular file had been put on the ‘case to answer’ track”. He “demand[ed] to know why [he] was being denied his statutory right of review”.

17

The Applicant was advised that the LCRO wished to hear only from him at that stage and that direction was made pursuant to the authority provided by s206(5) of the Lawyers and Conveyancers Act to regulate procedure in such manner as the LCRO deems fit, subject to the provisions of the Act.

18

The Applicant was then advised by letter dated 24 January, that the hearing had been scheduled for Wednesday, 9 March 2011, and in that letter it was noted-

You have exercised your right to be heard in person. This will assist the LCRO in ensuring that he has a full understanding of the matters raised in your review application. Following that hearing, the LCRO will determine how the matter is to proceed.

The Applicant only hearing constitutes part only of the review. Further directions will be issued by the LCRO following that hearing.”

It...

To continue reading

REQUEST YOUR TRIAL