MR GJ v MR TW
Jurisdiction | New Zealand |
Judge | LCRO Bouchier |
Judgment Date | 14 December 2011 |
Neutral Citation | [2011] NZLCRO 65 |
Docket Number | LCRO 205/2011 |
Court | Legal Complaints Review Officer |
Date | 14 December 2011 |
CONCERNING An application for review pursuant to Section 193 of the Lawyers and Conveyancers Act 2006
and
CONCERNING a determination of the Manawatu Standards Committee
of [North Island]
Of [North Island]
[2011] NZLCRO 65
LCRO Bouchier
LCRO 205/2011
Legal Complaints Review Officer, Wellington
Review of Standards Committee finding of unsatisfactory conduct for breach of Rules of Conduct and Client Care (“RCCC”) — applicant communicated directly with respondent's client — letter accused client of harassment, duress and slavery in respect of matters involving applicant's client — fine of $8,000 imposed together with costs order of $1,000 — applicant had been subjected to considerable trauma following serious assault — whether communication came within exception of r10.2.1 RCCC (exception to prohibition not to communicate directly with client of another lawyer where matter was urgent) — whether fine and costs were excessive.
The names and identifying details of the parties in this decision have been changed
This is a matter that involves two lawyers. Following a complaint made by Mr TW (the Respondent) the Standards Committee made findings of unsatisfactory conduct against Mr GJ (the Applicant), having determined that he had breached rules 10.1, 10.2 and 12 of the Rules of Conduct and Client Care.
Pursuant to Section 156 of the Lawyers and Conveyancers Act 2006 the Committee ordered that the Applicant be censured, that he was to provide a written apology to the Respondent (to be approved by the Committee), and to pay a fine of $8,000.00 to the New Zealand Law Society. He was also ordered to pay costs of $1,000.00.
The Applicant exercised his right to have that decision reviewed, both as to the substantive decision and the monetary orders. Her particularly objected to the $8,000 fine.
The background was that the Applicant had written directly to the Respondent's client, B. The letter opened with, “ We are writing to you directly as we have no confidence in your lawyer passing on correspondence to you.” In the following paragraphs the Applicant accused B of harassment, duress, slavery and illegally introducing new terms into an agreement. The letter was written in the context of the Applicant representing his client, C who had consulted the Applicant at the Community Law Centre. She held many grievances against B who was her former de facto partner.
In defending his action the Applicant had informed the Standards Committee that he was unaware that B was represented by the Respondent in his personal capacity, and that in any event the urgency of the matter justified him having directly written to B. He also felt that the circumstances of his client's grievance justified the allegations against B as raised in the letter.
A review hearing was held on 17 November 2011, attended by the Applicant, and also by the Respondent and a support person who was another solicitor from his law firm.
I indicated from the outset, that I would deal with the review application in two separate parts; the first dealing with the substantive decision of the Standards Committee, and the second dealing with the Standards Committee's orders.
At the hearing the Applicant reiterated the view that he was unaware B was represented by the Respondent in his personal capacity, his client, C, having informed the Applicant that her previous lawyer had not heard back from the Respondent. At the time he wrote to B the Applicant had not received C's file from her former lawyer, and claimed to be acting on the instructions of his client. I put it to the Applicant that it was no answer to an alleged breach of a professional rule that the client had instructed the action.
The fact the Applicant's letter made reference to B's lawyer suggested that he was aware that B was in fact represented, and this alone would give rise to the prohibition imposed by Rule 10.1, and notwithstanding that he may not have been certain that it was the Respondent who was acting for B, that he could have made enquiry (of the Respondent) who he knew represented B or his company. The circumstances were strongly indicative that B was represented by a lawyer, and I put it to the Applicant that this raised an obligation on him to have made some enquiry if he was in doubt.
The Applicant argued that there was in any event urgency in this case which justified the direct contact with B, and that his communication fell within the exceptions of Rule 10.2.1 which creates an exception to the prohibition where the matter is urgent and it is not possible to contact the person's lawyer or an appropriate member of that lawyers practice. He stated that the matters of which the client had complained were, in his view, very serious and were causing her considerable distress.
On questioning the Applicant it became clear that the matters concerning his client had been continuing for more than two months, that she was not in any immediate danger or risk, and had refused the options proposed by the Applicant of contacting the police or seeking a restraining order. I could find no proper basis to support the argument for “urgency” such the exemption applied in this case as there was nothing so urgent that could not have waited for a few days, sufficient for the Applicant to have made enquiry from the Respondent as to whether or not he was representing B in his personal capacity.
Having concluded that the circumstances did not give rise to the application of the exemption, I nevertheless noted that in any event the Rule 10.2.1 requires a lawyer to act fairly towards the other lawyers client at all times and to promptly notify the other lawyer of the details of the communication. In the light of the Applicant's explanation I also considered the tone and content of his letter. He said that C had consulted him in matters involving abuse and he was of the view that his letter appropriately reflected B's conduct towards his client. The matter of B's conduct may well have been the reason why C consulted the Applicant, but do not justify the tone and allegations contained in the letter.
In reflecting on the conduct it seemed to me that the Applicant had taken on, in an exceedingly personal way, the emotional burdens and grievances of his client, and had...
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