TL v NM
| Jurisdiction | New Zealand |
| Judgment Date | 18 January 2013 |
| Neutral Citation | [2013] NZLCRO 2 |
| Date | 18 January 2013 |
| Docket Number | LCRO 34/2012 |
| 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 Otago Standards Committee
[2013] NZLCRO 2
LCRO 34/2012
Review of Standard Committee's decision that there had been a technical breach of r8 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (duty to protect and to hold in strict confidence all information concerning a client) when the practitioner had given a vendor's real estate agent a copy of an agreement entered into by the complainant (his client) as purchaser, and which had been drafted by the agent — agent had mislaid its copy — footnote to r8 stated that information that was widely known or a matter of public record would nevertheless be confidential information — whether footnote formed part of rules — whether agreement was confidential — whether provision of information was within the implied authority of a lawyer.
The names and indentifying details of the parties in this decision have been changed.
This review concerns the short but important question of whether the release of a document by a solicitor to another person who had mislaid their copy of that document is a breach of the duty of confidence.
TL acted for NM who was the purchaser in a conveyancing transaction. NM complained about the conduct of TL in a number of respects. The Standards Committee upheld the complaint on one ground only (and no review is sought by NM in respect of those other matters). That ground was that TL had provided a copy of an agreement for sale and purchase agreement (the Agreement) to the agent (CCD) who acted for the vendor and who had prepared it.
The Standards Committee found that this conduct was unsatisfactory as “a technical breach of Rule 8 (and associated footnote 9)” of the Rules of Conduct and Client Care for Lawyers (Rules). Rule 8 provides:
A lawyer has a duty to protect and to hold in strict confidence all information concerning a client, the retainer, and the client's business and affairs acquired in the course of the professional relationship.
The footnote to which the Committee also referred provides:
Information acquired in the course of the professional relationship that may be widely known or a matter of public record (such as the address of the client, criminal convictions, or discharged bankruptcy) will nevertheless be confidential information.
There was no dispute about the facts. TL accepted at an early stage that, at the request of the agent, (and without reference to NM) he released a copy of the Agreement to CCD.
NM complained that TL had released “some documents” to CCD (and it appears to be accepted that this was only the Agreement). NM stated that CCD had sought copies from him, but he refused, and that he was in dispute with the agent.
In response to the complaint TL stated (in letters of 16 June and 19 September 2011) that the agent had prepared the Agreement and therefore as between the agent and NM the Agreement was not confidential, that the agent would have been able to obtain a copy from other sources, and that if the Agreement was part of a dispute or complaint in respect of the agent then it would have been available on discovery by the agent. I note that there is no evidence that CCD would have been able to locate a copy of the Agreement had it searched further (other than the assertion of TL) and therefore I do not consider that assertion to be of relevance to this review.
The simple question therefore is whether in releasing the Agreement to the agent TL breached the duty of confidence that he owed to NM.
The obligation under Rule 8 is not constrained to information which is not otherwise available. The footnote to that rule makes it clear that the duty of a lawyer will extend to maintaining confidence in respect of information which would be available elsewhere including on the public record.
TL (through his counsel) states that the footnote to Rule 8 should not be taken into account because it is a footnote and forms no part of the rule itself. This is clearly not the case. The footnote is part of the Rules (which have the force of legislation being the schedule to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008). For reasons of convenience and clarity of expression it appears that the drafters chose to put the explanatory statement in respect of the scope of the rules in the footnote. However the footnote forms part of the rules and clearly affects the scope and meaning of the rule to which it relates.
In any event TL accepts that the Agreement was confidential at least in a general sense. The main thrust of his submissions on review (and in respect of the original complaint) is that the Agreement was not confidential as between NM and CCD.
It was argued for TL that the Agreement and its contents were not confidential as between NM and CCD for two reasons.
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a. First the document was a contract between vendor and purchaser and as between vendor and purchaser the document which defines their respective obligations cannot be confidential (which must be correct). It was further argued that because CCD was the agent of the vendor a provision of the copy of the Agreement to...
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