XH v BB

 
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[2013] NZLCRO 34

LEGAL COMPLAINTS REVIEW OFFICER

LCRO 237/2012

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

BETWEEN
MR XH
Applicant
and
MR BB
Respondent

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

The issues were: whether the practitioner breached any professional obligation; and, whether the practitioner's letter amounted to a threat.

Held: Rule 8 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) applied to information that a lawyer acquired in respect of his client's information. The duty of confidentiality was clearly owed to the lawyer's client. No complaint had been made by the practitioner's client. The applicant was not the practitioner's client. Lawyers generally did not owe any professional duty to persons who were not their clients.

The practitioner was acting on his client's instructions in forwarding a copy of the letter to the applicant's father. It was customary in Fijian Indian families for senior family members to become involved in the marital difficulties of younger family members. The applicant himself had approved the involvement of senior family members as an appropriate way to resolve the situation. The practitioner owed a duty to S to follow her instructions. There was no evidence that the practitioner's actions were for any purpose other than progressing his client's interests.

Whether or not Fijian Indian customary practices were practices in NZ was not a matter for the practitioner to determine, nor was it for the LCRO to decide such matters. The only issue was whether any part of the practitioner's professional attendances amounted to a breach of his professional duties or acceptable professional practice, such that disciplinary consequences should follow. It was difficult to see any proper basis for disciplinary issues arising for the practitioner in acting in accordance with those representations.

The practitioner's letter informed the applicant that he had been instructed to apply for a restraining order if the applicant continued to text S. The letter did not amount to a threat but sought to alert the applicant against sending text messages to the practitioner's client in view of her instructions.

The practitioner's conduct did not raise disciplinary issues. The Standards Committee was correct to determine that no further action was necessary.

Decision of Standards Committee confirmed.

DECISION
1

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).

2

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.

Background
3

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.

4

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.

5

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.

6

The Practitioner also sent a copy of this letter to the Applicant's father.

Complaints
7

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

8

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

9

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.

10

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.

Practitioner's response
11

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.

12

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.

13

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.

14

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.

15

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.

16

The Practitioner added that he considered that his client was entitled to instruct him to forward the Applicant's emails to other person(s)...

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