RT v MX

 
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[2012] NZLCRO 94

LCRO 284/2011

Concerning An application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006

and

Concerning a determination of the Wellington Standards Committee 1

Between
RT
Applicant
and
MX
Respondent

RT as the Applicant

MX the Respondent

The Wellington Standards Committee 1

The New Zealand Law Society

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

Application for review of standards committee's decision to take no further action — practitioner was acting for ex-partner of applicant — was attempting to recover alleged debt after relationship had ended — applicant was self represented — client gave practitioner applicant's phone number which he used to call applicant — applicant complained about use of unlisted number, direct contact, and “threatening” of legal proceedings — whether there had been a breach of r12 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (conduct dealings with others, including self represented persons, with integrity, respect and courtesy) — whether there had been a breach of r2.3 (only use legal processes for proper purposes).

Held: There was no breach resulting from the practitioner calling the applicant on an unlisted number. The number was provided by the client for the purpose of telephoning the applicant. The practitioner appeared to have been unaware that it was an unlisted number. However, regardless of such knowledge, there were no disciplinary issues arising from the practitioner calling the applicant on an unlisted phone number.

The practitioner did not breach the rules by contacting the applicant directly. The applicant did not have his own lawyer at that time, and in those circumstances a lawyer making direct contact with a third party in the interests of attempting to progress a matter was a common and acceptable practice. The rules only prohibited a lawyer contacting a person known to be presented by another lawyer.

Although the applicant may not have been expecting a phone call from the practitioner, there could be no objection to a self-represented party being contacted by the lawyer on the opposing side. In this case no reasonable progress was being made in resolving a matter and a direct phone call was not an improper step to take in the circumstances. Nor could such contact amount to an improper use of “legal processes”. No breach of the rule arose as a result of the contact.

There was no dispute that the call was made around 9:00 p.m. and lasted a fraction over three minutes. There was no record of what was said and how it was said but since it was in the practitioner's interests (or that of his client) to achieve a positive outcome if possible from the call, doing or saying anything likely to upset the applicant would have made little sense. The practitioner explained that he had hoped the matter could be resolved, but when he realised the applicant was unwilling to discuss the matter the call was concluded.

There could be no objection to the applicant having been informed about the claim, or that legal action could follow. While the applicant may have objected to having distasteful options outlined to him, or may have felt pressured by this prospect, this was not enough to support a disciplinary complaint. The point of the call was obviously to inform the applicant about the fact of the claim, and to seek his response. The purpose of the call was to try and avoid litigation.

There was no credible evidence that the practitioner breached his professional obligation to conduct dealings with third parties “with integrity, respect, and courtesy”. There was no evidence to show that there was a breach of r12.

Decision of the Standards Committee confirmed.

DECISION

Introduction
1

This is an application for review of a decision of the Wellington Standards Committee 1 which considered a complaint by RT (the Applicant) against MX (the Practitioner). The Standards Committee declined to uphold the complaint.

Background
2

The Practitioner was acting for a woman who had been in a relationship with the Applicant. It seems that the Practitioner's client had provided a guarantee to a bank in respect to the Applicant's indebtedness. When the relationship ended the Practitioner's client was required to pay the guaranteed sum in full to the bank when she wished to carry out some refinancing herself.

3

The Practitioner was instructed by his client to recover the money which she had been required to pay the bank to cover the Applicant's debt.

4

The Applicant was representing himself and, according to the Practitioner, the two men were communicating directly by email and letters. Matters were not progressing so the Practitioner was provided by his client with a contact phone number for the Applicant. After unsuccessfully ringing during the day he phoned him around 9:00 p.m. “with a view to ascertaining what the issue was with respect to the situation to see if any disputed matters could be resolved.”

5

The complaint makes it clear that the Applicant took exception to the call. Among the matters of concern was that the Practitioner had phoned on his unlisted/confidential phone number, that he was accused of owing “ a fair amount of money” without proof, that action was going to be taken against him, and that the Practitioner's general tone was “threatening”.

6

The Practitioner responded that he was not aware that the phone number was confidential and that it was given to him by his client for the purpose of...

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