XH v BB
| Jurisdiction | New Zealand |
| Judgment Date | 26 June 2013 |
| Neutral Citation | [2013] NZLCRO 34 |
| Date | 26 June 2013 |
| Docket Number | LCRO 237/2012 |
| Court | Legal Complaints Review Officer |
Concerning an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006 (the Act)
Concerning a determination of [A North Island] Standards Committee
[2013] NZLCRO 34
LCRO 237/2012
LEGAL COMPLAINTS REVIEW OFFICER
Application for review of Standards Committee decision declining to uphold complaints that practitioner had breached applicant's privacy and threatened him with a restraining order — practitioner acted for applicant's former wife in relation to their separation — practitioner sent a letter to the applicant containing proposals relating to financial matters and informing applicant that a restraining order could be sought if the applicant continued to send unpleasant text messages to his former wife — a copy of the letter was sent to the applicant's father on the client's instructions and following customary Fijian Indian practices — whether the practitioner breached any professional obligation — whether the practitioner's letter amounted to a threat
An application was made by Mr XH (the Applicant) for review of the decision of a Standards Committee which declined to uphold complaints he made against Mr BB (the Practitioner). The Committee's decision of 28 August 2012 determined to take no further action pursuant to s 138(2) of the Lawyers and Conveyancers Act 2006 (the Act).
The Applicant sought a review of the Committee's decision. The parties were invited to consent to the review being conducted on the papers in accordance with s 206 of the Act. The parties have consented to this process, which allows a Legal Complaints Review Officer (LCRO) to conduct the review on the basis of all the information available if the LCRO considers that the review can be adequately determined in the absence of the parties.
The marriage between the Applicant and Ms S ended after [less than a year], and they separated [in 2012]. The Practitioner acted for Ms S in the negotiation of a Separation Agreement and related matters. The Applicant was self-represented.
On 27 March 2012 the Practitioner sent a letter to the Applicant to say that he had been instructed by Ms S. The letter informed the Applicant that Ms S wished “to resolve this matter amicably” and, with reference to financial and other information, put forward a number of proposals (mostly of a financial nature) “on a strictly without prejudice basis.” 1 The Applicant was invited to confirm (in writing) his acceptance of the proposals, upon which the Practitioner would then prepare a Separation Agreement to record the agreement reached between them.
The same letter also made reference to the Applicant having sent “unpleasant text messages …” to Ms S and having made “… serious unfounded allegations on her.” 2 The Practitioner informed the Applicant that Ms S had instructed him to apply for a restraining order if the Applicant continued to send texts of any kind to her.
The Practitioner also sent a copy of this letter to the Applicant's father.
Arising from this background, the Applicant raised two main complaints with the New Zealand Law Society. The first alleged that the Practitioner had breached the privacy of the Applicant in disclosing certain information to the Applicant's father. He referred to the copy letter sent to his father which contained a number of personal matters, contending that the particulars of financial dealings between him and his wife amounted to a breach of the Applicant's privacy. The Applicant explained that his father had not been aware of the financial dealings between the couple and was “very disturbed to read of what had been going on between [Ms S] and me. My father was and has continued to be very upset with me.” 3
The second complaint concerned the threat of a restraining order. The Applicant wrote that the Practitioner “threatened me with a restraining order if I were to text his client, yet he sent me and continued to send me copies of e-mails from his client to him and copies of e-mails from other person/s to him”. 4
The Applicant advised the Standards Committee that he had informed the Practitioner of his concerns and had been told that the Practitioner was following the client's instructions.
The Applicant indicated (to the Standards Committee) a willingness to enter into negotiation, mediation or conciliation as a way to resolve his complaint, but also sought, as an outcome, that the Practitioner should be severely reprimanded for the irreparable damage he had caused.
In reply to the complaints the Practitioner explained that Ms S had provided details of circumstances both during, and immediately after the couple had separated including that: 5
as is customary in Fiji Indian families, the respective parents get involved in disputes between the spouses as it allows and facilitates disputes of such matters to be resolved in an amicable, objective and a civil manner.
He wrote that Ms S, her father and her uncle had all been present at the initial meeting and that he (the Practitioner) was instructed to copy the uncle into all correspondence (Ms S and her father did not have access to emails at the time), and Ms S could then respond in an objective manner.
The Practitioner wrote that the Applicant himself had suggested to Ms S's uncle that this matter could be resolved by family elders and had asked that Ms S's father and family elders get involved in the resolution of this matter. The Practitioner wrote that this was followed by a phone call by the Applicant's mother to Ms S. He added that the Applicant and his parents all live in the same house.
The Practitioner provided a background explanation for the instruction from Ms S to apply for a restraining order when she continued to get texts from the Applicant which she found intimidating, and felt her safety was at risk. He made reference to violence in the Applicant's prior relationships and that he was undergoing psychiatric treatment, presumably information provided by his client.
The Practitioner also informed the Committee that the Applicant had made direct contact with him via emails and phone calls, and that the emails he forwarded to the Applicant were Ms S's responses to emails that the Applicant had sent him.
The Practitioner added that he considered that his client was entitled to instruct him to forward the Applicant's emails to other person(s) and seek their assistance in responding to the Applicant. The Practitioner wrote that he had also sent to the Applicant's father an email that had come from Ms S's uncle, and was in direct response to the Applicant's email, adding that Ms S had instructed him to send it on to her uncle.
With regard to the 27 March letter the Practitioner explained that a copy was
sent, at his client's direction, to the Applicant's father, the Applicant himself having suggested (to Ms S's uncle) that family members, i.e. parents, be involved to resolve this matter as is customary in the Fiji Indian family. He wrote, “It is culturally acceptable in the wider Fiji Indian community for the extended family to be involved in marital issues especially of the recently married, to be at hand to mediate and resolve any issues that may arise.” 6The Practitioner concluded that the paramount reason for copying the letter to the Applicant's father was to achieve an amicable, speedy and efficient resolution, and also for his client's safety. The Practitioner did not consider there was anything malicious or sinister in the letter and there was no intention to cause any harm to the Applicant, and if any harm had been caused then this in hindsight was regretted and for each he sincerely and unreservedly apologised.
The Applicant denied much of what the Practitioner had written to the Standards Committee but materially, wrote: 7
a sensible lawyer would have sent a covering letter to the father...
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