RT v MX

• Jurisdiction: New Zealand
• Judgment Date: 12 October 2012
• Neutral Citation: [2012] NZLCRO 94
• Date: 12 October 2012
• Docket Number: LCRO 284/2011
• Court: Legal Complaints Review Officer

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

[2012] NZLCRO 94

LCRO 284/2011

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).

RT as the Applicant

MX the Respondent

The Wellington Standards Committee 1

The New Zealand Law Society

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 contacting the Applicant. The Practitioner described his correspondence and the telephone conversation as being “ of a professional kind”. The Practitioner said he introduced himself (to the Applicant), made it clear he acted for his client and wished to talk about what was at issue. He stated that when it became clear that the Applicant was not willing to discuss matters the call was concluded. His phone records show that the call lasted three minutes and five seconds.

Standards Committee Decision

7 The matter was referred by the New Zealand Law Society (NZLS) Complaints Service to Wellington Standards Committee 1. Its decision set out in some detail the position of both parties before deciding to take no further action for the following reasons.

• 1) (The Practitioner) acted appropriately in initially contacting (the Applicant's) former solicitors who advised him that they had no instructions and were no longer required;

• 2) (The Applicant) communicated directly with (the Practitioner) in responding to correspondence in emails and (the Practitioner) was instructed to telephone (the Applicant) after work by his client;

• 3) While (the Applicant) may have felt threatened by (the Practitioner) that call was not made for any improper purpose other than to try and resolve the problem of indebtedness for his client.

Application for Review

8 This review has been conducted on the papers in accordance with section 206(2)(b) of the Lawyers and Conveyancers Act 2006 with the consent of both parties.

9 It is the task of this office to review decisions of Standards Committees. The review includes consideration of how the Standards Committee dealt with the complaint and whether its decision is soundly based on the...