Mr Jd v Mr Ru
 NZLCRO 27
CONCERNING an application for review pursuant to section193 of the Lawyers and Conveyancers Act 2006 a determination of Auckland Standards Committee 5
Application for review of Standards Committee determination not to take further action against practitioner — complainant was father of victim of abuse - practitioner (who was representing accused) confronted complainant in the foyer of the court alleging complainant was intimidating accused — complaint of unprofessional and aggressive behaviour, and vilification and denigration complainant's character — whether actions constituted unsatisfactory conduct under Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 or Lawyers and Conveyancers Act 2006 — whether the Legal Complaints Review Officer could interfere with exercise of discretion by Standards Committee not to take further action — whether there was jurisdiction to consider complaint of vilification and denigration of character.
The issues were: whether, by confronting JD, RU's actions constituted unsatisfactory conduct and breached the provisions of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (“CCC Rules “) or Lawyers and Conveyancers Act 2006 (“LCA”); if so, whether the LCRO should interfere with the exercise of the Standard Committee's discretion not to take further action; and whether complaint of vilification and denigration of character of complainant in the court could be decided by the Standards Committee or LCRO.
Held: It was not part of a lawyer's brief to protect his client from physical harm. RU could have taken steps to ensure that his client was not subjected to intimidation without confronting JD. Although some contact may have been unavoidable in the circumstances, RU did not have a duty to protect his client from JD. It was inappropriate for him to confront JD and the contact breached r12 CCC Rules (lawyer when acting in professional capacity to conduct dealings with others with integrity, respect, and courtesy).
In addition, any form of contact with the father of the victim was unprofessional and constituted a breach of r10 CCC Rules (lawyer to promote and maintain proper standards of professionalism in the lawyer's dealings) and s12(b)(ii) LCA (unprofessional conduct by lawyer). RU's conduct constituted unsatisfactory conduct in terms of s12(b) LCA and s12(c) LCA (conduct in contravention of LCA, or of any regulations or practice rules).
The exercise of a discretion by the Standards Committee should not be lightly interfered with, unless there was good reason to do so ( ). In this case, interference was justified as the LCRO had been able to make findings of fact that the Standards Committee was unable to make. These findings led to the conclusion that there had been breaches of the LCA and the CCC Rules, inevitably leading to a finding of unsatisfactory conduct on the part of RU.
The conduct of the court proceedings were within the control of the presiding judge. If the judge had been concerned by the comments he would have called for a response. JD may have been offended by them, but it was not the role of the Standards Committee or the LCRO to determine the validity or otherwise of the comments made to the court.
The finding of unsatisfactory conduct related only to the incident in the court foyer.
Determination of the Standards Committee reversed and RU censured. Review application partially successful. Costs order against RU.
Mr JD is the father of a child victim of an indecent act by an adult. Mr RU acted for the accused.
The incidents out of which Mr JD's complaints arise took place at the [Auckland] District Court when the accused appeared to answer the charges laid against him.
Mr JD complains that Mr RU's conduct on the day breached a number of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. He lists these in his complaint to the Complaints Service of the New Zealand Law Society as follows:
• Chapter 10, s 10 (obligation to promote and maintain proper standards of professionalism in all dealings)
• Chapter 12, s 12 (duty to conduct dealings with third parties with integrity, respect and courtesy)
• Chapter 13, s 13 (overriding duty as an officer of the court to act and behave in a respectful and dignified manner of the court concerned)
• Chapter 13 s 13.2 (obligation to not act in a way that undermines the processes of the court, or the dignity of the judiciary)
• Chapter 13, s 13.2.1 (obligation to treat others involved in the court process with respect)
• Chapter 13.8 (obligation not to attack a person's reputation without good cause in court or in documents filed in court proceedings)
• Chapter 13.8.2 (obligation not to make any allegations against a person not involved in the proceedings unless they are necessary to the conduct of the litigation and reasonable steps taken to ensure the accuracy of the allegations)
• Chapter 13.13(b) (obligation to put before the court any proper defence in accordance with his client's instructions but not misled the court in any way).
I have recorded these as they are contained in Mr JD's complaint, but in some instances the references are not necessarily correct, either by way of the rule number or its summarised content.
Having considered all of the evidence available to it, the Committee recorded its determination in the following way:
“The Committee considered all of the information before it. The Committee noted that this was an example of a case where one party alleges something and the other party denies it. The Committee could not determine whose version of events is correct and the Committee decided that in the absence of sufficient corroborating evidence, the allegation is not proven.”
Accordingly the Committee determined to take no further action pursuant to section 152(2)(c) of the Lawyers and Conveyancers Act 2006..
Mr JD has applied for a review of that determination. He asserts that the Standards Committee could have sought evidence from a person who accompanied Mr RU on the day and that the Committee did little if anything by way of exercising its powers of investigation.
He also objects to the fact that that the Standards Committee had rephrased his complaint as being one of a perceived threat to Mr RU's client and therefore considered the complaint on that basis.
It is noted and recorded, that Mr JD's complaint is that Mr RU actions were unbecoming and unprofessional, and that he had brought the profession into disrepute.
Section 241(c) of the Lawyers and Conveyancers Act, repeats the terminology used in section 106(3)(c) of the Law Practitioners Act 1982. Both sections refer to a degree of incompetence or negligence that is such as to bring the profession into disrepute. They are not terms which can be applied to the conduct complained of in this instance.
In his complaint to the Complaints Service, Mr JD lists a number of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, which he considers Mr RU has breached. A breach of the Rules constitutes unsatisfactory conduct by reason of section 12(c) of the Act.
In addition to these Rules, it must be considered whether Mr RU's conduct was conduct which would be regarded by lawyers of good standing as being unacceptable including conduct unbecoming a lawyer or unprofessional conduct, both of which if proved, constitutes unsatisfactory conduct as defined in section 12(b) of the Act.
This review rests largely on a consideration of the available evidence of what occurred in the Court precincts on the day in question.
I met with Mr JD and heard his evidence and submissions on 22 February 2012. Mr JD's nephew JE, had provided a statement to the Complaints Service in support of Mr JD's complaint. Neither he or the family friend who accompanied Mr JD on the day were able to attend the review hearing as they live at a distance from Auckland. Mr JD's partner, who was the other member of his group on the day, was also unable to attend in person for personal reasons. However, both of these persons have provided written statements as to the events that took place on that day.
I then met with Mr RU on 23 February. In the course of that meeting he provided me with the contact details of the law student (Ms X) who had accompanied him on the day, and I met separately with her on 28 February.
The greatest weight must be given to the evidence of those persons who have attended in person at the LCRO Office to provide their version of events and to answer the questions put to them. That is not to suggest however, that the evidence of the three persons who have provided written statements is disregarded. That evidence is useful to help build a picture of the events of the morning. In addition, all three persons have provided telephone numbers and indicated a willingness to be contacted by me. I have not made telephone contact with any of these persons as the findings of fact which I have made do not rely on these statements.
I have also given some consideration as to whether the evidence of Ms X and the two additional persons of Mr JD's group should be provided to the other party for comment. I have determined not to take this step, because primarily this is a...
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