MR GJ v MR TW
 NZLCRO 65
Legal Complaints Review Officer, Wellington
CONCERNING An application for review pursuant to Section 193 of the Lawyers and Conveyancers Act 2006
CONCERNING a determination of the Manawatu Standards Committee
of [North Island]
Of [North Island]
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 issues were: whether the communication by GJ came within the exception of r10.2.1; and whether the fine and costs orders were excessive.
Held: The fact that GJ's letter referred to B's lawyer suggested he was aware that B was represented and that this would give rise to the prohibition in r10.2 RCCC (must not communicate directly with person who is represented). GJ could have made enquiry of TW to ascertain if he was still acting for B. The circumstances raised an obligation on GJ to make such an enquiry.
The matters concerning GJ's client had been continuing for more than two months and she was not in any immediate danger or risk so that the communication could be termed as “urgent” for the exception to apply. While B's conduct towards C may have justified C consulting a lawyer, it did not justify the tone and content of GJ's letter. GJ had taken on the burdens of his client in an exceedingly personal way. He had aligned himself to her cause to the extent that he had lost perspective on the matter, as well as on his professional role. GJ appeared to have lost sight of his collegial obligations, his professional obligations, and his obligations towards third parties. Lawyers were expected to be familiar with their professional obligations. There was no basis to take a different view to that of the Standards Committee.
The fine of $8,000 imposed by the Standards Committee was over half of the maximum penalty available for any professional failing and was excessive. Fines imposed for similar or equivalent professional failings were generally in the region of $1,200 and $1,500.
It was clear GJ had suffered a trauma that had a broad and profound effect on him, which may have impacted on how he handled the case for his client. Justice required that all relevant matters had to be taken into account before the imposition of a fine. In light of the wider circumstances from which the conduct arose, the insights gained by GJ in the course of the review process, and his making an unreserved apology to TW, and to B (which he could not be compelled to do), an appropriate fine would be $500.
A costs order had to take into account a lawyer's ability to pay ( ). GJ's financial means were limited and any significant amount would cause unreasonable hardship. Accordingly, the costs were reduced to $250.00.
Standards Committee decision confirmed in all respects except as to the monetary order.
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...
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