Reserved Decision of New Zealand Lawyers and Conveyancers Disciplinary Tribunal

 
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[2013] NZLCDT 9

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

CHAIR

Mr D Mackenzie

MEMBERS OF TRIBUNAL

Ms S Hughes QC

Mr C Lucas

Mr P Shaw

Mr W Smith

LCDT 025/12

In the Matter of the Lawyers and Conveyancers Act 2006
and
In the Matter of Boon Gunn Hong Lawyer, of Auckland
APPEARANCES

Mr P Collins, for the Legal Complaints Review Officer

Mr B Hong, Practitioner, self-represented

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dispute with barrister who represented former clients — practitioner had written to barrister that if the claim was not withdrawn he would file a complaint, seek costs against him personally and file defamation proceedings — practitioner wrote to instructing solicitors concerning their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).

Held: It was not a breach of the CCCR's to set out proposed actions and indicate the grounds on which the applications and proceedings would be based, even if aggressively expressed. The threat to file a professional disciplinary complaint based on incompetence was a threat of a complaint for an improper purpose (to have the proceedings against him withdrawn). If H had real concerns about competence, that concern should not evaporate simply if the proceedings were withdrawn as he sought.

While clients involved in litigation could sometimes react adversely and criticise their legal representatives, it was unprofessional for H to have made that comment in the way he did in the context of the proceedings against him. Associated with that was a failure to treat his former clients with respect, in suggesting they would “turn on” their legal representatives. H's comments to the instructing solicitors hoping that the barristers had professional indemnity insurance and that they would bear brunt, were unprofessional and breached r10 CCCR. H had also breached r10.1 CCCR and r13.2.1 CCCR, particularly with regard to the suggestion that limited liability and liquidation could be used by Baker Law to “avoid paying up”. However, that unprofessional conduct and lack of respect did not constitute an obstruction of justice under r2.2 CCCR. There had been petty behaviour, which constituted low level breaches of r10 CCCR and r13.2.1 CCCR, but it did not rise to the level of an attempt to obstruct justice.

While the language used in H's complaint to the Complaints Service was not considered, he had expressed the issues he wanted to complain about as he saw them. The matters complained about were not objectionable matters in themselves, and they represented his genuinely held views. H's approach to the Law Society in an attempt to resolve this matter was unusual but it was not conduct that required the intervention of the disciplinary regime. H's proposal was unusual and on its face was unprofessional, but the matter was raised for consideration by the Complaints Service in the context of a complaint/cross-complaint situation between D and H.

Where a practitioner went far beyond what was reasonable or necessary, and made claims of an extreme or outrageous nature, responding to or providing detail of a complaint to the Complaints Service should not put a practitioner at risk of going too far in describing genuinely held concerns, and facing disciplinary charges for statements made in that context. While not suggesting that H's assertions about D were justified, H's assertions were not of such a nature that he had breached the CCCR's relating to discourtesy or disrespect. His style had been unnecessarily direct and unsophisticated but there was nothing that required the intervention of the disciplinary regime.

The LCRO, when reviewing a final determination of a Standards Committee, could only review aspects of any inquiry or investigation involved in relation to the complaint or matter to which the final determination related. There was no power to consider matters beyond the scope of the complaint or matter to which the determination related. H's submissions on the Review had occurred after the determination by the Standards Committee, and so were outside the scope of Review. Subsequent conduct, not the subject of complaint or other matter forming part of the determination, were not matters for further investigation as part of the Review.

The wording of s4(a) LCA, indicated that it could apply only in the context of the provision of regulated services. The LCRO had accepted, and laid the charge against H, on the basis that there were no regulated services involved, so it was doubtful there could have been a breach of s4(a) LCA. Even if it was not necessary that regulated services be provided for s4(a) LCA to apply, H's conduct in relation to the CCCR breaches had not amounted to failure to uphold the rule of law and to facilitate the administration of justice. For the misconduct charge to be proven in relation to the CCCR breaches, H's conduct had to be of such a nature that it would justify a finding that he was not a fit and proper person or was otherwise unsuited to engage in practice as a lawyer. The threshold set by r7(1)(b)(ii) CCCR was relatively high. The context had to be taken into account. H's behaviour had been reactionary rather than premeditated, reflecting its context as an unseemly and unprofessional dispute between two practitioners involved in a personal clash that escalated into complaint and cross complaint and investigation under the disciplinary regime. H's conduct had not reached the level of misconduct that would justify finding that he was not a fit and proper person or was otherwise was unfit to practice. They were not failings which indicated that H was not fit to practice. There was no risk to the public in H practising.

The misconduct charge was not proven, and it was dismissed.

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...

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