NS v TD [2018] NZLCRO 100 (27 September 2018)

Last Updated: 30 October 2018

	LCRO 151/2016 LCRO 157/2016
CONCERNING	applications for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING	A determination of the [Area] Standards Committee
BETWEEN	NS Applicant
AND	TD
	Respondent
AND BETWEEN	TD
	Applicant
AND	NS
	Respondent

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

DECISION

Introduction

[1] These reviews arise from cross-complaints by Messrs NS and TD, which led to determinations of unsatisfactory conduct against each of them by the [Area] Standards Committee (the Committee).

[2] Each had complained about the other’s conduct in, or in relation to, Family Court parenting proceedings. Mr TD had complained about Mr NS’ conduct in

protection order proceedings that appear to have arisen from the parenting proceedings.

[3] This decision is only concerned with the complaints that led to unsatisfactory conduct determinations. Each applicant now seeks the quashing of the determination/s affecting him. Mr NS seeks reconsideration of the Committee’s decision not to impose a penalty on Mr TD.

Background

Mr NS

[4] In August 2014, Mr NS accepted instructions from Mr and Mrs M to pursue a parenting application against Ms R in respect of a child, A, of whom they were the paternal grandparents.

[5] A month later Mr NS accepted instructions to act for Mr S, the father of Ms R’s other child, B, to pursue a parenting application in respect of B. In October 2014, the two parenting applications were consolidated.

[6] Subsequently, a Family Court judge queried the propriety of Mr NS acting for all three applicants in the parenting proceedings. Mr NS then referred Mr and Mrs M to other counsel, but continued to act for Mr S.

[7] Mr L came to be a witness for the applicants. When that happened, Ms R sought a protection order against Mr L. Mr NS accepted instructions from him to oppose that application.

[8] During the protection order proceedings, Ms R proffered as propensity evidence against Mr L, Facebook material written by Ms P, a former client of Mr NS (the Facebook material).

[9] The Facebook material was that Mr L had previously behaved with Ms P in a way that matched, or closely resembled, the conduct of which Ms R complained. So, if accepted by the court, the Facebook material potentially added to the strength of Ms R’s case for a protection order against Mr L.

[10] Mr NS chose not to challenge the Facebook material. He has asserted that he chose that course because in his judgment it was so poor that it could safely be ignored.

[11] However, the Family Court judge who heard the protection order application accepted and used the Facebook material as propensity evidence when he made a protection order in favour of Ms R against Mr L.

[12] Mr L appealed that order, with Mr NS still acting for him. One of the grounds advanced was that the Family Court judge erred in law in relying on the Facebook material as propensity evidence.

[13] The High Court judge noted that Mr NS had acted for Ms P when she had obtained a protection order against Mr L. The judge adjourned the appeal, noting that “Mr NS ... is conflicted from continuing to act for [Mr L] [and that another] lawyer will need to [act for Mr L]”.1

[14] The judge further noted that the Facebook material was an important issue, which had not been challenged by Mr NS in the Family Court. He said that “[in] all likelihood, Mr NS was unable to advance the arguments he now wishes to pursue on behalf of [Mr L] because he had acted for [Ms P]”.2

Mr TD

[15] After concern initially arose in the parenting proceedings about the care of the two children, there was a round-table meeting (the meeting) the aim of which was to endeavour to resolve those concerns by consent. Mr NS participated in the meeting as did Mr TD who had been instructed to act for Ms R and continued to do so throughout.

[16] Mr TD told the Committee that Mrs M had raised a question at the meeting as to whether the two children should be kept together. He brought that to the attention of the Committee as evidence of Mr NS being conflicted when acting for Mr and Mrs M on the one hand, and Mr S on the other hand, as the applicants in the parenting proceedings.

Mr TD’s complaint and the Standards Committee decision

[17] Mr TD lodged a wide-ranging complaint concerning Mr NS’ conduct with the New Zealand Law Society Complaints Service (NZLS) on 6 November 2015 but, as noted above, I am only concerned with the two complaints that were upheld.

[18] Those complaints were summarised by the Committee as being:

1 [Case citation removed] at [1].

2 At [8].

(a) Because of their differing interests and instructions in the parenting proceedings, Mr NS was conflicted when he acted for both Mr and Mrs M and Mr S.

(b) Mr NS was also conflicted when he continued to act for Mr L after the evidence of Ms P, his former client, was proffered in the protection order proceedings.

[19] The Committee delivered its decision on 23 May 2016 and determined, pursuant to s 152(b) of the Lawyers and Conveyancers Act 2006 (the Act) that there had been unsatisfactory conduct by Mr NS (as defined by s 12(c) of the Act) for these reasons:

• (a) In the case of the parenting proceedings, he had acted for multiple clients where there was more than a negligible risk of an inability to discharge his obligations to one or more of them.
  
• (b) That conflict had developed following the consolidation of the two sets of parenting proceedings in October 2014, if not before, and was related to the issue of whether the two children should stay together.
  
• (c) There was evidence that at the meeting Mrs M had indicated a preference for the two children being kept together which, conflicted with Mr S’s application for the care of the child of whom he was father.
  
• (d) In the case of the protection order proceedings, and in the interests of Mr L who was defending the application for such an order, the potentially damaging evidence (the Facebook material) of Mr NS’ former client, Ms P, should have been tested but was not.
  
• (e) The conflict was apparent from the fact that Mr NS had previously acted for Ms P in protection order proceedings against Mr L.
  

[20] The Committee consequently fined Mr NS $2000 and ordered him to pay costs of $1000.

Mr NS’ complaints and the Standards Committee decision

[21] When Mr NS responded to Mr TD’s complaints on 21 November 2015 he raised several his own.

[22] My attention is solely on a wrongful disclosure determination made by the Committee against Mr TD on the complaint of Mr NS. None of the other complaints led to any adverse findings against Mr TD and Mr NS has not applied to review those aspects of the Committee’s determination.

[23] The wrongful disclosure complaint was summarised by the Committee as being that Mr TD, in making his complaint against Mr NS, had improperly disclosed privileged information to the Committee, namely what Mrs M had allegedly said about keeping the two children together, at the meeting.

[24] The Committee’s determination is also dated 23 May 2016. It determined pursuant to s 152(2)(b) of the Act that there had been unsatisfactory conduct, as defined by s 12(b)(i), on the part of Mr TD in that he improperly disclosed privileged information to the Committee.

[25] However, the Committee decided not to impose any penalty against Mr TD. It said that, despite its finding that he had erred on this occasion, it did not wish to discourage lawyers from reporting suspected misconduct. Moreover, the breach was at the very low end of the unsatisfactory conduct spectrum.

Application for review — Mr NS

[26] Mr NS filed an application for review on 1 July 2016. He asks for the Committee’s unsatisfactory conduct determinations against him to be set aside and he seeks the imposition of a penalty on Mr TD for his unsatisfactory conduct.

[27] As to any conflict of interest in relation to the parenting proceedings, Mr NS submits that:

• (a) The applicants (Mr and Mrs M and Mr S) had originally made independent parenting applications in relation to the child to whom they were blood-related (A and B respectively). The applications were later consolidated.
  
• (b) There were only two situations in which concern as to conflict could have arisen. First if either of the applicants had believed they should have

care of the children, and secondly if in either proceeding contact between the siblings was an issue.3

(c) As the applicants or applicant in each case had bloodline links with only one of the two children, leave of the court based on a real and substantial involvement with the other child would have been a condition precedent to seeking a parenting order covering both.4

(d) In any event, at no time had any of the applicants expressed any wish to him to seek the care of both children.

(e) All applicants had parallel interests against the mother in each case confined to the child with whom there was a blood relationship and all other issues had been resolved prior to the commencement of proceedings. Thus, any conflict risk had been negligible at most.

(f) He was hamstrung when it came to raising informed consent in his defence because that would intrude upon client confidentiality or privilege.

[28] As to the conflict of interest finding against him in relation to the protection order proceedings, Mr NS submitted that the Facebook material was so lacking in weight and worth as to not require any challenge or response. The fact that Ms P had been a client of his (in an earlier application by her for a protection order against Mr L), was of no moment.

[29] Mr NS raised other Family Court procedural matters but, as the central point is whether by continuing to act for Mr L when Ms P’s Facebook material was offered against him he became conflicted, those other matters may be put aside.

Mr TD’s response

[30] In his response dated 22 July 2016, Mr TD submits:

3 Care of Children Act 2004, s 8 — contact, in relation to a child, includes all forms of direct and indirect interaction with the child.

4 This appears to be an oblique reference to s 47(1)(e) of the Care of Children Act 2004 whereby an applicant who is unrelated to a child can only seek a parenting order with the court’s leave.

(a) Given what he had reported from the meeting, the absence of an application for the care of both children supported a conclusion of lack of independent advice.

(b) The fact that there had been no challenge, in fact no response at all, to Ms P’s Facebook material demonstrated, that Mr NS was fettered by the fact of his former representation of her.

Mr TD’s application for review

[31] In his review application lodged on 6 July 2016, Mr TD seeks the reversal of the finding of unsatisfactory conduct made against him.

[32] He submits that the statement he reported from the meeting was “central to the upheld complaint” he had made of conflict of interest. It is correct to say that the Committee used that very material when finding unsatisfactory conduct by Mr NS.

[33] Beyond that, his position was that:

• (a) his complaint had been of the kind contemplated by r 2.8 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (LCCCR);
  
• (b) what he had disclosed had not breached solicitor–client privilege as the applicants were not his clients;
  
• (c) the s 53(1) and s 57 privilege was confined to disclosure in the proceedings themselves and his disclosure was in a r 2.8 report, one which did no harm to those involved in the court proceedings;5
  
• (d) seeking consent to disclosure would have revealed that he was making a report or complaint when such was a confidential step;
  
• (e) in any event, any approach to the applicants concerned would have been inappropriate as they were not his clients;
  
• (f) it would be inimical to the complaints process were a report of misconduct precluded for the lack of consent: that would be “nonsensical”;
  

5 Evidence Act 2006.

(g) the adverse outcome of the complaint against him was against the public interest; and

(h) it was contradictory and confusing to be held responsible for unsatisfactory conduct yet not penalised in case that might discourage other lawyers from reporting suspected misconduct.

Mr NS’s response

[34] On 11 August 2016, Mr NS responded at some length to Mr TD’s review application.

[35] That response can, however, be summed up by his own words that “privilege is privilege”; which, he submitted, constrained him from speaking about what had actually happened at the meeting.

Review on the papers

[36] The parties have agreed to their reviews being dealt with on the papers. These reviews have been undertaken on the papers pursuant to s 206(2) of the Act, which allows a Legal Complaints Review Officer (LCRO) to conduct a review on the basis of all information available if the LCRO considers that the review can be adequately determined in the absence of the parties.

[37] I record that having carefully read the complaints, the responses to the complaints, the Committee’s decision on all matters raised and the submissions filed in support of and in opposition to the applications for review, there are no additional issues or questions in my mind that necessitate any further submission from either party. On the basis of the information available I have concluded that both reviews can be adequately determined in the absence of the parties and are most conveniently dealt with together.

Nature and scope of review

[38] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:6

6 Deliu v Hong [2012] NZHC 158, [2012] NZAR 209 at [39]–[41].

... the power of review conferred upon Review Officers is not appropriately equated with a general appeal. The obligations and powers of the Review Officer as described in the Act create a very particular statutory process.

The Review Officer has broad powers to conduct his or her own investigations including the power to exercise for that purpose all the powers of a Standards Committee or an investigator and seek and receive evidence. These powers extend to “any review” ...

... the power of review is much broader than an appeal. It gives the Review Officer discretion as to the approach to be taken on any particular review as to the extent of the investigations necessary to conduct that review, and therefore clearly contemplates the Review Officer reaching his or her own view on the evidence before her. Nevertheless, as the Guidelines properly recognise, where the review is of the exercise of a discretion, it is appropriate for the Review Officer to exercise some particular caution before substituting his or her own judgment without good reason.

[39] More recently, the High Court has described a review by this Office in the following way:7

A review by the LCRO is tonight or challenge the Facebook evidence a judicial review nor an appeal. Those seeking a review of a Committee determination are entitled to a review based on the LCRO’s own opinion rather than on deference to the view of the Committee. A review by the LCRO is informal, inquisitorial and robust. It involves the LCRO coming to his or her own view of the fairness of the substance and process of a Committee’s determination.

[40] Given those directions, the approach on this review, based on my own view of the fairness of the substance and process of the Committee’s determination, has been to:

• (a) consider all of the available material afresh, including the Committee’s decision; and
  
• (b) provide an independent opinion based on those materials.
  

Analysis

Mr NS and the parenting proceedings — conflict of interest?

[41] The starting point is r 6. It provides:

In acting for a client, a lawyer must, within the bounds of the law and these rules, protect and promote the interests of the client to the exclusion of the interests of third parties.

[42] Rules 6.1 and 6.1.1 of the LCCCR permit a lawyer to act for two or more parties in the same matter where there is informed consent8 and so long as there is no

7 Deliu v Connell [2016] NZHC 361, [2016] NZAR 475 at [2].

more than a negligible risk that the lawyer may be unable to discharge the lawyer’s r 6 duties.9

[43] When considering whether to act for more than one client on a matter, a lawyer must ensure that the “no more than negligible risk” hurdle is safely cleared.

[44] The lawyer must be sure that they can “protect and promote the interests” of all clients for whom they propose to act in the matter, “to the exclusion of the interests of third parties”. Put another way, the lawyer must be sure at the outset that the interests of all potential clients are aligned for the matter in hand.

[45] If, before agreeing to act, the lawyer considers that there is a more than negligible risk that those interests may not align, then no amount of prior informed consent or provision of information will cure the conflicting duties problem.10

[46] Conversely, if at the beginning of a retainer the lawyer considers that there is a negligible or less risk that the interests of the two or more clients may not align, and that does not change during the retainer, then the lawyer may agree to act for them all.

[47] However, acting for more than one client on a matter can easily become less than a straightforward and safe endeavour. Twists and turns can and do arise.

[48] If it becomes apparent during the retainer that the lawyer can no longer discharge the obligations owed to all of the clients for whom that lawyer acts, then r 6.1.2 requires the lawyer immediately to inform each of the clients of this fact and terminate the retainers with all of them.

[49] The one exception is that r 6.1.3 permits a lawyer to continue to act for one of the clients provided that the other clients concerned, after receiving independent advice, give informed consent to the lawyer continuing to act for that one client, and no duties to the consenting clients have been or will be breached.

8 An expression defined in r 1.2 as consent after explanation of the material risks of and alternatives to the proposed course of action and where the lawyer reasonably believes that the client understands the issues involved.

9 That expression connotes a very low threshold of risk, one not worth considering: Sandy v Khan LCRO 181/2009 (9 December 2009) at [36].

10 Rule 1.2 provides that informed consent means consent given by the client after the matter in respect of which the consent is sought and the material risks of and alternatives to the proposed course of action have been explained to the client and the lawyer believes, on reasonable grounds, that the client understands the issues involved.

Law Society standing advice — authored by Duncan Webb

[50] This readily accessible and sound on-line advice begins by saying that:11

Rule 6.1 certainly is an onerous rule. Probably the touch-stone for lawyers is that they can never act in a way which might harm the interests of one of their clients. The rule is often stated to be “prophylactic” in nature. It prevents lawyers acting even when there is only a risk of conflicting duties – to prevent against the risk of myopia.

[51] In this case, Mr NS having already agreed to act for Mr and Mrs M in the parenting proceedings, should not have accepted instructions from Mr S to act in those same proceedings.

[52] I acknowledge his assertion that they appeared to have parallel interests but, even if that appeared so at the outset, there could never have been any assurance of that remaining the position. He failed to appreciate that there was a more than negligible risk of the following range of conflicts arising:

• (a) Mr and Mrs M and Mr S could have ended up at odds on issues where the welfare of the two children became intertwined, whether in care or contact terms.
  
• (b) Mr and Mrs M and Mr S could also have ended up at odds as to the nature and scope of the evidence to be adduced in their respective proceedings. Those were plainly destined for consolidation (thus a single hearing) as in fact quickly occurred.
  
• (c) One or other of the two sets of applicants could have come to the view that the welfare of the two children would be best served by their living together in the one home environment.
  

[53] Given the range of possible care and/or contact permutations in a case where the parties were the mother of both children, the father of one (with, as appears to have been the case, his partner being a material figure too) and the paternal grandparents of the other, the need for special caution on the representation front was heightened.

[54] Mr NS himself (writing to the Committee on 21 November 2015) remarked that his ceasing to act for Mr and Mrs M was born of a concern for the possibility of future conflict. But there must have been a more than negligible risk of that arising at the

11 Duncan Webb “Don’t Act if There is Even a Risk of Conflict” (27 August 2015) New Zealand Law Society <www.lawsociety.org.nz>.

outset of the retainer, as there was when he subsequently ceased to act for Mr and Mrs M.

[55] In his 11 August 2016 response to Mr TD’s submissions, Mr NS said that whilst it was theoretically possible that Mr and Mrs M could have made an application concerning Mr S’s child, it was never a real possibility.

[56] Again, that is not the point. Mr NS could never have been sure that it would not at some stage have occurred to either of the sets of applicants that keeping the two children together would best serve their welfare.

[57] The question of whether Mr NS could then justify continuing to act for Mr S in the parenting proceedings, rather than bowing out altogether, is not for me to examine as the Committee decided to take no further action on Mr TD’s complaint about that, and he has not applied to review that aspect of the Committee’s determination.

[58] But speaking in general terms, to continue to act for one client in circumstances where a lawyer has ceased to act for another involved in the same matter, can raise its own set of troubling questions, even given informed consent.

[59] Of those I will only mention the particularly obvious one that the lawyer, although no longer acting for that client, will have acquired knowledge about that client which the lawyer would have been unaware of had they not acted for them.

[60] That none of the parties may have complained, is beside the point. There can be many reasons for that, including ignorance of any right to complain.

[61] As noted earlier, Duncan Webb has said:

Rule 6.1 is certainly an onerous rule. It does not take much for a risk of conflict to be “more than negligible”.

[62] I find that there was a more than negligible risk that the interests of both of Mr NS’ clients might not be aligned, during the whole of the period when he was acting for them. He ought to have foreseen that at the very outset.

[63] I agree with the Committee’s conclusion that this was unsatisfactory conduct by Mr NS.

Acting in the protection order proceedings:

The Family Court judge’s decision12

[64] In determining the protection order application, the judge noted that Mr NS’ client, Mr L, chose neither to deny nor to challenge the Facebook material. Mr L had simply indicated that he would not respond to it.

[65] That stance contributed to the judge drawing the inference that the Facebook material was correct and could be taken into account as propensity evidence when determining the merits of the application.

Discussion

[66] Mr NS has endeavoured to justify the way he treated the Facebook material.13 He said that at the hearing the judge appeared to categorise the Facebook material as mere gossip.14 But reasonably experienced counsel should know that a judge’s passing observations during a hearing give no assurance of the final judicial conclusions.

[67] In his decision, the Family Court judge explained that he considered the Facebook material to be significant and telling. He then went on to note that Mr NS’ client had chosen neither to deny nor to challenge that evidence. Instead his position had been that he would not respond to the allegations made.

[68] The judge went so far as to conclude that the absence of any denial equated an admission that the allegations in the Facebook material were correct. He therefore took them into account as propensity evidence.

[69] Mr NS also submitted that the Evidence Act 2006 (EA) applied to parenting proceedings. The argument was the Facebook material would not have met the admissibility requirements for hearsay evidence.15

[70] This overlooks s 12A(4) of the Family Court Act 1980, which provides:

The effect of section 5(3) of the Evidence Act 2006 is that that Act applies to the proceeding. However, the court hearing the proceeding may receive any evidence, whether or not admissible under the Evidence Act 2006, that the court considers may assist it to determine the proceeding.

12 [Family Court citation removed] at [65] in particular.

13 See [25]–[26] above.

14 In his 22 July 2016 response, Mr TD asserted that what the judge had said was in fact directed to another topic.

15 Evidence Act, s 18.

[71] The Committee appeared to approach this as a breach by Mr NS of r 6.1:16

in that there was a more than negligible risk that he would be unable to discharge the obligations owed to Mr L in circumstances where Ms R had put [the Facebook material] in evidence, and Ms P [the author of the Facebook material] was therefore able to be summonsed for the purposes of cross- examination. Mr NS had a conflict of interest acting for Mr L in those proceedings, having previously acted for Ms P in [protection order proceedings] against Mr L.

[72] I do not consider that this conduct raises issues under r 6.1. Rule 6.1 deals with conflicts of interest when a lawyer is “[acting] for more than one client on a matter”. Mr NS was not acting for Ms P in the protection order proceedings. He was acting for Mr L.

[73] It bears setting out the relevant facts again:

• (a) Mr NS had acted for Ms P when she brought protection order proceedings against Mr L.
  
• (b) Subsequently, Ms R brought protection order proceedings against Mr L.
  
• (c) Mr NS agreed to act for Mr L in Ms R’s proceedings.
  
• (d) As part of her case Ms R introduced Facebook material written by Ms P, about her experiences with Mr L.
  
• (e) Mr NS did not challenge the Facebook material.
  
• (f) The Family Court judge granted Ms R a protection order against Mr L, and relied upon the Facebook material to show that Mr L had a propensity to engage in domestic violence.
  

[74] In my view, r 6 more correctly deals with the situation. It says:

In acting for a client, a lawyer must, within the bounds of the law in these rules, protect and promote the interests of the client to the exclusion of the interests of third parties.

[75] Mr NS’ client was Mr L. Ms P was a “third party” in the protection order proceedings. Her interests included Mr NS’ duty of confidentiality to her, acquired when he acted for her in the protection order proceedings she brought against Mr L. That duty of confidentiality lasts indefinitely.

16 Standards Committee determination 23 May 2016 at [35].

[76] Mr NS was therefore unable to challenge the Facebook material, as in doing so there was a risk that he would disclose information confidential to Ms P that he had acquired whilst acting for her against Mr L. Simply, he could not cross-examine or otherwise challenge Ms R about her experiences of domestic violence with Mr L.

[77] Because of this, Mr NS was unable to “promote and protect the interests of [Mr L] to the exclusion of the interests of [Ms R]”.

[78] I would therefore uphold the Committee’s unsatisfactory conduct determination in relation to the protection order proceedings, but on the basis that it was a breach of r 6 and not of r 6.1.

Mr TD and the meeting related disclosure

[79] I turn to the Committee’s determination on the complaint that Mr TD breached privilege when he disclosed to the Committee, in support of his parenting applications conflict complaint against Mr NS, what Mrs M allegedly said about keeping the two children together.

[80] Mr TD did not have Mrs M’s permission, let alone that of all who were present at the meeting endeavouring to resolve differences, to make that disclosure.

Mr TD’s arguments

[81] It was common ground that the meeting was subject to s 57(1)(b) of the EA. Broadly, this creates a privilege for settlement negotiations carried out in connection to an attempt to settle a dispute.

[82] Section 53 of the EA grants or preserves to every person who has the benefit of the s 57 EA privilege, the right to refuse to disclose or permit the disclosure of communications made on such an occasion. Permission to disclose must be obtained.

It cannot be assumed.17

[83] Mr TD argues that there is no impediment to disclosure when the occasion relates to a lawyer’s concern about the conduct of a fellow practitioner.

[84] He submits that he can rely on s 5 of the EA, which provides that where that Act is inconsistent with another, the latter prevails.

17 See s 65 of the EA as to waiver.

[85] He then argues that, for lawyers, there is an overwhelming obligation under the LCCCR to report misconduct by fellow practitioners — a contention amounting to the claim that r 2.8 (or 2.9) — mere regulations — can trump s 57 of the EA.

[86] Rules 2.8 and 2.9 say:

Reporting misconduct

2.8 Subject to the obligation on a lawyer to protect privileged communications, a lawyer who has reasonable grounds to suspect that another lawyer has been guilty of misconduct must make a confidential report to the Law Society at the earliest opportunity.

• 2.8.1 This rule applies despite the lawyer’s duty to protect confidential non-privileged information.
• 2.8.2 Where a report by a lawyer to the Law Society under rule 2.8 may breach the lawyer’s duty to protect confidential non-privileged information, the lawyer should also advise his or her client of the report.

2.9 Subject to the obligation on a lawyer to protect privileged communications, a lawyer who has reasonable grounds to suspect that another lawyer has been guilty of unsatisfactory conduct may make a confidential report to the Law Society, in which case rule 2.8.1 will likewise apply.

[87] The fact that the obligation to protect “confidential non-privileged information” refers only to that of the reporting lawyer’s client is made obvious by r 2.8.2. Importantly, however, privileged communications are given a blanket cover.

Privilege and the Evidence Act

[88] The common law recognises that privilege, a benefit that has expanded over the centuries, is a precious thing. In the allied context of legal discipline and solicitor- client privilege the Privy Council has said:18

47. The present case ... involves a contest between ... two competing public interests of high importance: the public interest in the maintenance of the integrity of the legal profession and the public interest in the administration of justice. The former interest may be said to require that all relevant information be made available to those charged with the investigation and determination of complaints against legal practitioners. The latter requires that a lawyer must be able to give his client an absolute and unqualified assurance that whatever the client tells him in confidence will never be disclosed without his consent.

[89] In that case the Judicial Board held that in the absence of any statutory exception the protection of legal professional privilege was absolute. The Law Practitioners Act 1982 provided that those involved in disciplinary proceedings had the

18 B v Auckland District Law Society [2003] UKPC 38, [2003] 2 AC 736.

same protection as at law and did not exclude legal professional privilege.19 It was an essential part of the legal process. That remains the case under the 2006 Act.20

[90] The Evidence Act is not a complete code. There are common law-based exceptions to the “without prejudice” rule but none applies here and,21 given that the context was a multi-party meeting, the consent of all to any disclosure of what transpired there would have been required.22

The Committee’s handling of the meeting material

[91] It was Mr TD’s disclosure of the meeting material that prompted the Committee to inquire into whether Mr NS had breached r 6.1 in acting for both the paternal grandparents and Mr S in the parenting proceedings.

[92] In considering the r 6.1 issue, the Committee noted Mr TD’s submission that the conflict became apparent when, at the round-table conference on 31 October 2014, Mrs M referred to the two children being kept together, yet Mr S had applied for the care of only one of the children.

[93] However, the Committee concluded that a more than negligible risk that the interests of Mr NS’ clients were not aligned arose earlier, on 6 October 2014, when the proceedings in the Family Court were consolidated. Indeed, the Committee considered that the risk may have been present at the outset of the proceedings in August 2014.23

[94] It was not until August 2015 that Mr NS referred Mr and Mrs M to other counsel.

[95] It seems clear that the Committee did not take the meeting material into account when deciding that Mr NS had breached r 6.1.

[96] When looking at Mr NS’ complaint that Mr TD had improperly disclosed privileged information, the Committee found that “the disclosure [by Mr TD] was wrong

19 Law Practitioners Act 1982, s 127.

20 Lawyers and Conveyancers Act 2006 provides: s 271 Legal professional privilege

Nothing in this Part limits or affects legal professional privilege.

21 See Sheppard Industries Ltd v Specialized Bicycle Components Incorporated [2011] NZCA 346, [2011] 3 NZLR 620 at [24]. One recognised exception is where the exclusion of the evidence would act as a cloak for perjury, blackmail or other serious impropriety. But the conduct in this case is far removed from that league.

22 Evidence Act, s 65(5).

23 Standards Committee determination, above n 15 at [23].

because it was of the content of a privileged meeting and the privilege (which belonged to the clients) was not waived”.24

[97] This led to the Committee making a finding of unsatisfactory conduct against Mr TD; this on the basis that his conduct would be regarded by lawyers of good standing as being unacceptable and unbecoming, contrary to s 12(b)(i) of the Act.

[98] I note that Mr TD proffered the meeting material without any preliminary inquiry of the Committee as to whether it would receive it as evidence.

[99] It might appear as though the Committee has taken the material that had been improperly disclosed by Mr TD, and used that material to make its finding that Mr NS had breached r 6.1. On one view, it may be thought unfair that Mr TD should be penalised for drawing a rules breach by another lawyer to the attention of the NZLS.

[100] However, it is clear that the Committee effectively put the meeting material to one side when looking at Mr NS’ conduct in acting for two clients in one matter. It found the breach to have occurred some weeks before the round-table meeting, if not sooner.

[101] It may have been preferable for the Committee to have declined to receive the meeting material as part of Mr TD’s complaint, and to have commenced an own-motion inquiry into the issue of whether Mr NS had breached r 6.1. Approaching the matter in this way would have removed any suggestion that the meeting material formed part of the Committee’s inquiry into Mr NS’ conduct.

[102] Equally, Mr TD could have made his complaint that Mr NS was in breach of r 6.1 without any reference to the meeting material. He could simply have drawn attention to the fact that Mr NS was acting for two clients in one matter where there was a more than negligible risk that their interests were not aligned.

[103] The conflict issue was, in fact, readily apparent without recourse to any communication made at the meeting.

[104] In considering whether to impose a penalty against Mr TD, the Committee concluded that the breach was at “the very low end of the spectrum” and that the Committee did not wish to discourage lawyers from complying with their professional obligations to report suspected misconduct.

24 At [45].

[105] I agree with the Committee’s conclusion that Mr TD’s conduct was unsatisfactory and deserving of a finding to that effect. Privileged material is privileged and there was an absolute prohibition against disclosure of the meeting material without the attendees’ consent. The EA makes this plain.

[106] I do not agree with the Committee’s reason for not imposing any penalty. As mentioned above, Mr TD could have drawn attention to Mr NS’ breach without any reference to the round-table meeting and what was said there. No issues of discouraging others from reporting suspected misconduct, arise.

[107] I consider that Mr TD should pay a fine of $1,000 for this breach.

Decision

[108] Pursuant to s 211(1) of the Lawyers and Conveyancers Act 2006:

• (a) I confirm the Committee’s finding of unsatisfactory conduct by Mr NS for being conflicted in the parenting litigation in contravention of r 6.1 of the LCCCR.
  
• (b) I confirm the committee’s finding of unsatisfactory conduct by Mr NS in that by continuing to act for Mr L in the protection order litigation when his former client Mrs P’s evidence became material but modify the finding that it was a breach of r 6.1 of the LCCCR by finding that it was a breach of r 6 of the LCCCR.
  
• (c) I confirm the fine imposed on Mr NS of $2,000 on both accounts.
  
• (d) I confirm the costs ordered against Mr NS of $1,000.
  
• (e) I confirm the finding of unsatisfactory conduct by Mr TD for the improper disclosure of privileged information to the New Zealand Law Society Complaints Service.
  
• (f) I impose a fine on Mr TD of $1,000 for that breach.
  

Costs

[109] Where a finding of unsatisfactory conduct is made or upheld against a practitioner on review it is usual that a costs order will be imposed. I see no reason to depart from that principle in this case.

[110] Taking into account the Costs Guidelines of this Office, Mr NS and Mr TD are each ordered to contribute the sum of $1,200 to the costs of the review, those sums to be paid to the New Zealand Law Society within 30 days of the date of this decision.

[111] The order for costs is made pursuant to s 210(1) of the Lawyers and Conveyancers Act 2006.

Enforcement of costs order

[112] Pursuant to s 215 of the Lawyers and Conveyancers Act 2006 I confirm that the order for costs made by me may be enforced in the civil jurisdiction of the District Court.

DATED this 27th day of September 2018

Rex Maidment

Legal Complaints Review Officer

In accordance with s 213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:

Mr NS as First Party Mr TD as Second Party

Ms OR as Related Person [Area] Standards Committee The New Zealand Law Society