Mr GT v Mr TL

 
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[2012] NZLCRO 6

LCRO 05/2011

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

And

CONCERNING A Determination of the Taranaki Standards Committee

BETWEEN
Mr GT of [North Island]
Applicant
and
Ms TL [North Island]
Respondent
counsel

In accordance with s.213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:

Mr GT as the applicant

Ms TL as the respondent

Taranaki Standards Committee

The New Zealand Law Society

Application for review of Standards Committee's determination not to take further action on a complaint — practitioner instructed by board of organisation (“employer”) where applicant was senior executive — original instruction related to complaint by a staff member raising a personal grievance — practitioner had contact with applicant on this matter — following receipt of information, focus changed to disciplinary action against applicant who was then dismissed employer — practitioner's firm (but not practitioner herself) represented applicant in property matters several years earlier — whether applicant was client of the practitioner or her firm — whether practitioner was acting for both employer and applicant at same time — whether Standards Committee should have addressed criticisms as to process used by employer in disciplinary proceedings.

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

The issues were: whether the applicant was a client of the practitioner or her firm; whether the practitioner had been acting for the applicant and the employer at the same time; and, whether the Standards Committee should have commented on alleged breaches of natural justice in the process leading to GT's termination.

Held: GT was mistaken in believing that the status of a client continued indefinitely. There was no prohibition on a firm acting against an individual for whom it once acted, subject to an enduring obligation of confidence that it would not use information, acquired in the course of a professional relationship, against a former client. None of the work previously undertaken by the firm for GT concerned his employment.

TL did not at any time represent GT in his personal capacity. At the meeting complained of, TL had been representing the employer. There was nothing at that time to suggest that GT would come under scrutiny. He had inevitably been involved, but as an employee. Further TL's conduct was neither misleading nor deceptive. GT's complaints related to the process used by his employer. These employment issues were not matters that TL was required to answer. Moreover, GT had been represented by another firm at this time.

GT had overlooked the distinction between his role as the authorised representative of the employer and his personal position as an employee. The matter could not be determined on the basis of his own belief. There were clear demarcations surrounding the duties of lawyers in relation to clients and former clients. The fact that TL had had prior communication with GT did not alter either his status as an employee, or TL's status as legal adviser to the employer.

It would have been inappropriate for the Standards Committee to comment on GT's employer's processes which lead to his dismissal. The disciplinary machinery of the New Zealand Law Society was concerned only with the professional conduct of lawyers. Complaints against others (individuals or corporate entities) that would not come under the jurisdiction of the Society could not be dealt with in this process. GT was seeking to “remedy all failures of natural justice”, and much of his grievance was against his former employer.

Decision of the Standards Committee confirmed.

DECISION
1

Complaints to the New Zealand Law Society were made by Mr GT (the Applicant) against three lawyers, each of whom had some association with his former employer. None of the complaints was upheld and the Applicant sought a review of all three Standards Committee decisions.

2

This decision deals with the review application of his complaint against Ms TL (the Practitioner).

Background
3

The Applicant was employed as the chief executive of a community organisation which was governed by a Board. In this role he received a complaint by a staff member which raised a personal grievance. In connection with this the Board sought the services of the Practitioner who was instructed to represent the Board. In this capacity she had dealings with the Applicant.

4

The Practitioner's firm had previously acted for the Applicant personally in the 1990s in relation to a conveyance and a will. This was before the Practitioner had joined the firm. She herself had not acted for the Applicant in his personal capacity.

5

In the course of her enquiries into the personal grievance, the Practitioner was sent certain information by other employees in connection with the matter, which led to other similar claims being made. The information raised concerns about the conduct of the Applicant. Thereafter the Board's enquiry became focused on his conduct, and eventually led to termination of his employment and membership of the organisation. The Applicant filed proceedings with the Employment Relations Authority and it appears that the dispute with his former employer was resolved by negotiation or mediation.

6

The Applicant subsequently made complaints against the Practitioner and two other lawyers from her firm. The complaints were headed “client conflict” and “betrayal of trust and confidence”. The Applicant contended that he was a client of the firm, and that by representing the Board and acting against him, the Practitioner (and others in the firm) were conflicted and in breach of their professional obligations to him.

7

He further contended that when acting for the Board the Practitioner was at the same time acting for him. He referred to a meeting on 29 September 2008 that had been called to deal with an earlier personal grievance claim by a former employee. The meeting was attended by the Applicant and the Practitioner and also the Chair of the Board. At this time the Practitioner had stated that they were “all on the same team”.

8

The Standards Committee file records the extent of enquiry undertaken in respect of the complaints and it is clear that the parties had the opportunity of stating their position and responding to the comments of the other.

9

The Practitioner denied any conflict of interest. She listed the dealings between the Applicant and the firm, the last contact said to have occurred in 1997, and were to do with property and the drafting of wills. The Practitioner denied that the Applicant was a current client of the firm at the time she took instructions from the Applicant's employer. She informed the Committee that the firm did not hold any information about the Applicant in relation to matters involving his employment.

10

She rejected the contention that she (or the firm) were acting for the Board and the Applicant at the same time. With regard to the 29 September 2008 meeting she explained that the Board had fully accepted the Applicant's version of the events concerning the employee's personal grievance and that the comment about “all being in the same team” was intended to reassure the Applicant that the...

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