Reserved Decision of New Zealand Lawyers and Conveyancers Disciplinary Tribunal

JurisdictionNew Zealand
JudgeMr D Mackenzie,Ms S Hughes,Mr C Lucas,Mr P Shaw,Mr W Smith
Judgment Date21 February 2013
Neutral Citation[2013] NZLCDT 9
Docket NumberLCDT 025/12
CourtLawyers and Conveyancers’ Disciplinary Tribunal
Date21 February 2013
In the Matter of the Lawyers and Conveyancers Act 2006
and
In the Matter of Boon Gunn Hong Lawyer, of Auckland

[2013] NZLCDT 9

CHAIR

Mr D Mackenzie

MEMBERS OF TRIBUNAL

Ms S Hughes QC

Mr C Lucas

Mr P Shaw

Mr W Smith

LCDT 025/12

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

Charge of misconduct under s7(1)(b)(ii) Lawyers and Conveyancers Act 2006 (willful or reckless contravention of any provision of the LCA, regulations or practice rules) — alleged misconduct was unrelated to the provision of regulated services — conduct arose from proceedings commenced against practitioner by former clients — practitioner became involved in dispute with barrister who represented former clients — practitioner had written to barrister that if the claim was not withdrawn he would file a complaint, seek costs against him personally and file defamation proceedings — practitioner wrote to instructing solicitors concerning their liability — practitioner laid complaint about barrister alleging incompetency, racism, mental instability and alleged breaches of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (“CCCR”) — misconduct related to s4(a) LCA (obligation to uphold the rule of law and to facilitate the administration of justice); r2 CCCR, (obligation to facilitate the administration of justice); r2.2 CCCR (obstructing, preventing, or defeating the course of justice); r2.7 CCCR (making threats to fellow lawyers that he would make allegations against them for an improper purpose); r10 CCCR (professional dealings); r10.1 CCCR (failing to promote and maintain proper standards of professionalism and by treating fellow lawyers with disrespect and discourtesy); r10.2 CCCR (communicating directly with another lawyer's clients) and r13.2.1 CCCR (failing to treat others in Court processes with respect).

APPEARANCES

Mr P Collins, for the Legal Complaints Review Officer

Mr B Hong, Practitioner, self-represented

RESERVED DECISION OF NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

Introduction
1

Mr Hong faces one charge of misconduct under s 7(1)(b)(ii) Lawyers and Conveyancers Act 2006. The charge is based on a series of acts by Mr Hong, and it is alleged that either together or individually those acts constitute the misconduct charged under s 7(1)(b)(ii).

2

The misconduct with which Mr Hong has been charged is unconnected with the provision of regulated services by him, but is said to be of a nature which would justify a finding that Mr Hong is not a fit and proper person or is otherwise unsuited to engage in practice as a lawyer.

3

While Mr Hong acknowledges that he conducted himself as alleged, he denies his conduct constitutes misconduct as charged.

Background
4

The charge arose from Mr Hong's conduct following proceedings being commenced against him and some others by a Mr and Mrs Ma, former clients of Mr Hong. The proceedings related to the purchase of a property which had issues relating to weather-tightness (“Ma proceedings”).

5

Following receipt of the Ma proceedings, Mr Hong initially corresponded by letters and emails with the Ma's legal representatives, solicitors Baker Law and two barristers from Amicus Chambers instructed by Baker Law, Messrs Zhao and Ram. As a result of the content of those letters and emails, Mr Deliu, a barrister who described himself as head of Amicus Chambers, made a complaint to the Lawyers' Complaints Service. This complaint against Mr Hong was subsequently enlarged to cover matters arising from further material from Mr Hong.

6

In response to that complaint, Mr Hong claimed that he had written in the first instance to the Ma's legal representatives because he had been concerned about the standard of professional advice he considered was being provided to Mr and Mrs Ma, and the fact that they could be put to unjustified expense.

7

Mr Hong proposed a complaint of his own to the Lawyers Complaints Service, about Messrs Zhao and Ram, but did not follow through on this complaint after what Mr Hong described as an abusive telephone message he had received from Mr Deliu. Instead, he advised the Complaints Service that he wanted his complaint to be focused on Mr Deliu's conduct.

8

After considering both Mr Hong's complaint against Mr Deliu, and Mr Deliu's complaint against Mr Hong, the Standards Committee determined to take no further action on either.

9

Mr Hong left it at that, but in respect of his complaint about Mr Hong, Mr Deliu did not accept the outcome and sought a review by the Legal Complaints Review Officer (“LCRO”). On that review, the LCRO confirmed the decision of the Standards Committee to take no further action.

10

Mr Deliu then applied to the High Court for a judicial review of the LCRO's determination. The High Court granted Mr Deliu's application and made orders quashing the LCRO's determination and remitting the matter back to a Review Officer for reconsideration. 1 The Deputy Legal Complaints Review Officer undertook this required review.

11

After conducting the review, the Review Officer determined that Mr Hong's conduct should be considered by this Tribunal. The misconduct charge Mr Hong now faces was subsequently laid by the LCRO on 10 September 2012.

The misconduct charge
12

The misconduct charge which Mr Hong faces is of a special nature, being an exception to the normally required position of charged conduct occurring at a time when the practitioner is providing regulated services. In the misconduct charge against Mr Hong, the relevant section 2 provides, so far as applicable:

Misconduct, in relation to a lawyer……includes –

(i) ……………………

(ii) Conduct of the lawyer……which is unconnected with the provision of regulated services by the lawyer……but which would justify a finding that the lawyer……is not a fit and proper person or is otherwise unsuited to engage in practice as a lawyer……

13

For the LCRO, Mr Collins confirmed that the misconduct charge was brought under this particular section because it was considered that Mr Hong's conduct was not connected with the provision of regulated services by Mr Hong. Mr Collins said that the charge could only have been brought under the usual misconduct provisions in the Lawyers and Conveyancers Act 2006 if Mr Hong's conduct had occurred at a time when Mr Hong was providing regulated services. The definition of regulated services required Mr Hong to have been carrying out legal work for another person at the time of his conduct, and that was not the case in the circumstances of this charge, he said.

14

The factual basis of Mr Hong's conduct was not disputed by Mr Hong. The issue was whether statements he had made in the letters and emails he had sent (and in respect of one particular, in submissions he had made to the Review Officer) amounted to misconduct as charged. That is, did the statements, as set out in the particulars of the charge, breach Mr Hong's professional obligations and amount to misconduct of a nature which would justify a finding that Mr Hong was not a fit and proper person or was otherwise unsuited to engage in practice as a lawyer?

15

The LCRO's position was that Mr Hong's conduct had breached various provisions of the Lawyers and Conveyancers Act 2006 (“the Act”) and the Lawyers

and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (“CCCR”), and that those breaches amounted to misconduct in terms of s 7(1)(b)(ii) of the Act
16

The provisions said to be breached were:

  • (a) Section 4(a) of the Act and Rule 2 CCCR, by Mr Hong failing in his obligation to facilitate the administration of justice;

  • (b) Rule 2.2 CCCR, by Mr Hong obstructing, preventing, or defeating the course of justice;

  • (c) Rule 2.7 CCCR, by Mr Hong making threats to fellow lawyers that he would make allegations against them for an improper purpose;

  • (d) Rules 10 and 10.1 CCCR, by Mr Hong failing to promote and maintain proper standards of professionalism and by treating fellow lawyers with disrespect and discourtesy;

  • (e) Rule 10.2 CCCR, as a consequence of Mr Hong threatening to engage in conduct which, if carried out, would have breached that rule;

  • (f) Rule 13.2.1 CCCR, by Mr Hong failing to treat others in Court processes with respect.

Basis of the Charge
17

Particulars, said to show that the provisions of CCCR noted above had been breached, were set out in the charge. Mr Collins, for the LCRO, identified in his submissions which provisions were alleged to have been breached in respect of each of the particulars, as the charge itself did not specifically identify such matters.

18

As to the alleged breach of s 4(a) of the Act, Mr Collins submitted that the overall pattern of Mr Hong's conduct, as recorded in all of the particulars, represented a failure of his fundamental duty to facilitate the administration of justice.

19

There were nine matters particularised, set out as paragraphs 2.2 to 2.10 of the misconduct charge. Each matter particularised was said to demonstrate a breach of certain rules in the CCCR, as outlined by Mr Collins.

20

The various particulars were divided into three categories:

  • (i) correspondence by Mr Hong with legal representatives of Mr and Mrs Ma; 3

  • (ii) correspondence with and submissions to the Lawyers Complaints Service by Mr Hong; 4 and,

  • (iii) Mr Hong's submissions to the Review Officer undertaking the review following remission of the matter from the High Court. 5

21

The first issue for the Tribunal is to consider whether the particulars specified demonstrate breaches as alleged. If there is a breach, the second issue for the Tribunal to consider is whether any such breach, either on its own or together with any other such breaches, constitutes misconduct in terms of s 7(1)(b)(ii) of the Act.

Particulars of the Charge
Correspondence with legal representatives of Mr and Mrs Ma
22

Letter dated 5 May 2010 from Mr Hong to...

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7 cases
  • Deliu v Hong
    • New Zealand
    • High Court
    • 12 Abril 2013
    ...the quantification of indemnity costs: see Hong v Zhao HC Auckland CIV-2011-404-1838, 11 August 2011. 4 In the matter of Boon Gunn Hong [2013] NZLCDT 9. 5 Deliu v Hong, above n 6 Deliu v Hong, above n 2. 7 Deliu v Hong HC Auckland CIV-2010-404-006349, 17 June 2011 (Associate Judge Bell). 8......
  • Orlov v The Nz Lawyers and Conveyancers Disciplinary Tribunal
    • New Zealand
    • High Court
    • 21 Agosto 2014
    ...Hart v Auckland Standards Committee 1 of New Zealand Law Society, above n 58; Parlane v New Zealand Law Society, above n 59. 66 Re Hong [2013] NZLCDT 9; Moodie (2013) National Standards Committee 6804; Dr Tony Molloy QC (2012) National Standards Committee 6446; Bradbury and Muir (2013) Nat......
  • Boon Gunn Hong v Legal Complaints Review Officer
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    • Court of Appeal
    • 14 Octubre 2016
    ...Hong v Legal Complaints Review Officer [2016] NZHC 1358. 7 Hong v Legal Complaints Review Officer CA340/2016, 24 August 2016. 8 Re Hong [2013] NZLCDT 9. 9 Lawyers and Conveyancers Act 2006, s ...
  • Hong v Auckland Standards Committee No. 3
    • New Zealand
    • High Court
    • 18 Noviembre 2014
    ...Standards Committee No.3 [2013] NZAR 1519 (HC). 10 Canterbury-Westland Standards Committee v Taffs [2013]NZLCDT 13. 11 LCRO v Hong [2013] NZLCDT 9. 12 At 13 At p 69 of the transcript. 14 At p 77. 15 The period of suspension commenced on 24 July 2014. ...
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