QD v FZ [2018] NZLCRO 107 (12 October 2018)

Last Updated: 29 November 2018

	LCRO 58/2018
CONCERNING	an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING	a determination of the [Area] Standards Committee [X]
BETWEEN	QD Applicant
AND	FZ Respondent

DECISION

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

Introduction

[1] Mr QD has applied for a review of a decision by the [Area] Standards Committee [X] (the Committee) which found that Mr QD had contravened rr 10 and 13.8 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) and there had been unsatisfactory conduct on his part pursuant to s 12(b) and (c) of the Lawyers and Conveyancers Act 2006 (the Act). The Committee ordered Mr QD to pay a fine of $1,500 and costs of $500.

Background

[2] Mr QD acted for Mr FZ in criminal matters subject to a grant of legal aid. Their professional relationship became difficult, then came to an end with Mr FZ terminating the retainer by email to Mr QD dated 2 February 2017 saying:

As from today 02.02.17

I dismiss you as my lawyer for the case CRI-XXX-XXX-XXXXXX

I have informed [Town] District Court today at 12.30pm and have a meeting tomorrow with Legal Aid

...

[3] Mr QD did not attend Court on 8 February 2017, understanding that the Legal Services Agency (LSA) would appoint another lawyer and his services were not required.

[4] It seems no new lawyer was appointed. Mr QD then received an email from the lawyer who had appeared for the Crown conveying the Court’s direction to Mr QD requiring him to “appear ... to seek formal leave to withdraw as counsel to explain the circumstances in which leave is sought, as well as to explain your recent absences from Court”. The email also said that Mr FZ had appeared and regaled the Judge with criticisms of Mr QD, including that he had not responded to his correspondence, been away on holiday, and refused to answer his questions because Legal Aid did not pay him enough for that.

[5] Mr QD says he would usually just have filed a brief memorandum saying something like the relationship with his client had come to an end, LSA had been advised, legal aid would be transferred and another lawyer would appear. Instead, having been told of Mr FZ’s criticisms, Mr QD composed a memorandum defending himself and roundly criticising Mr FZ, dated 8 February 2017 (the memorandum) which he sent to the Judge and copied to LSA. The memorandum said:

1. I have been informed that an explanation was sought for my absence at today’s call over. I took an informed and conscious decision not to appear at today’s hearing as I am an experienced Lawyer having a standing in practice since 1986 but cannot tolerate abuses and racists’ taunts from anyone leave alone a defendant who has a five pages criminal history.
   
2. Legal Aid was informed of my decision not to attend today’s hearing and a new legal aid Lawyer was to appear and seek my withdrawal as normally is the procedure.
   
3. For some unknown reason the same was not done by the Ministry of Justice.
   
4. The defendant is an alcoholic and a compulsive liar, he has had over 75 communications with me either by Email, phone, SMS or personal interactions.
   
5. On each of these interactions he came drunk the latest being 6th January 2017 when I had a detailed briefing with him and his so-called witnesses. He was smelling of liquor and his wife confessed that he had drunk six bottles of wine prior to meeting me at 12:30 p.m. in the [Town] Court Chambers. He went on ranting how a Donald Trump is needed in NZ so that black lawyers like me are kicked out of New Zealand.
   
6. I did not bother about his rantings but told him what the Judge had on the 15th December 2016 told him that as it was an alcohol fuelled assault he must re consider his position before going before a Jury. This annoyed him further and he turned more aggressive and abusive. Having been experienced in dealing

with gun toting terrorists and their like being hardened criminals I told him he is no threat to me that he is making a fool of himself especially before a Jury.

7. As I was to leave NZ from 14th to 7th February 2017 for an Overseas Trial I told him I may reconsider my position to appear for him.
   
8. On 12th January 2017 I informed Legal Aid that I may consider withdrawing from the case.
   
9. On the 26th January 2017 at the Call Over [WD] appeared but the defendant did not appear. She tried his phone but no response.
   
10. On 1st February 2017 [WD] helped him get his WTA cancelled. He then told [WD] he knows the legal system well and he knows how to complain to the Judge in open court and embarrass me and ensure that I cannot practice as a Lawyer!.
    
11. On the 7th February 2017 I told Legal Aid I will no longer represent him and even not appear on 8 February either myself or [WD] as we do not succumb to threats, blackmail and intimidating tactics.
    
12. I understand as expected that the defendant made defamatory statements against me in open court.
    
13. I am enclosing information available on the court record and the Email correspondence with him that will show that I replied all his emails, for obvious reasons I do not have copies of SMS and phone messages that number over 75 they have a File record of same.
    

Complaint

[6] The memorandum came to the attention of Mr FZ, and on 20 June 2017 he wrote to the New Zealand Law Society (NZLS) saying Mr QD’s practising certificate should not be renewed, alleging incompetent representation in various ways, and attaching a copy of the memorandum. He says Mr QD is a liar.

[7] Mr QD’s position in response is that, having been sacked on 2 February 2017, he contacted the Legal Services Agency, advised it that he was no longer acting, assumed someone else would be appointed to take his place on 8 February 2017 and made a conscious choice not to appear that day without telling the Court. His reply to the complaint focuses on the evidence he says supports the truth of the assertions he made about Mr FZ in the memorandum. Mr QD says that he provided the memorandum to LSA and the Court on 8 February 2017 after Mr FZ had appeared that day. Neither LSA or the Court expressed any concern about its content, and the Court excused his attendance without further question.

[8] In his submissions to the Committee dated 10 November 2017, Mr QD said he understood Mr FZ had made defamatory comments about him in open Court on 8 February 2017 before colleagues and the public, and had issued threats, deployed intimidating tactics and blackmailed him while they were in a lawyer client relationship.

He says he was defending himself. Mr QD says he did not copy the memorandum to the Crown and asked that the matter be placed before the Judge in chambers, so it would be dealt with privately. Mr QD describes the contents of the memorandum as:

... unadulterated truth and backed by evidence to show the credibility between a lawyer and the defendant. Even the Ministry of Justice had told me that Racism is not a ground for reassignment of the file unless I get leave from the court. With no alternative I had to put my clear point of view with-out hiding the correct facts.

[9] Mr QD did not accept that he had contravened any of the Rules, but said that if he had, any breach was minor, caused no prejudice or there was no risk of repetition. Mr QD does not consider that disciplinary intervention is required, and supports this argument with the fact that the Judge accepted his explanation and did not take issue with the professionalism of his memorandum. Mr QD accepted that his choice of words could have been different, but says that he was subjected to racism (denied by Mr FZ) he should not have to suffer, and his conduct cannot be assessed in a vacuum.

Standards Committee decision

[10] The Committee considered the various aspects of Mr FZ’s complaint, and focussed its concern on the memorandum. The Committee considered whether the memorandum:

was improper and in breach of rules 10 and 13.8 ... including but not limited to his comments in paragraph 4, 5 and 6 of the memorandum, and the documents he attached to it.

[11] Rules 10 and 13.8 say:1

A lawyer must promote and maintain proper standards of professionalism in the lawyer’s dealings.

A lawyer engaged in litigation must not attack a person’s reputation without good cause in court or in documents filed in court proceedings.

[12] The Committee considered parts of the memorandum were unprofessional and unnecessarily attacked Mr FZ’s reputation. It did not consider that the conduct was justified by Mr QD defending himself from “defamatory comments” made by Mr FZ in open court. The Committee’s view was that paragraphs 4, 5 and 6 of the memorandum fell below the standard set by r 10 because:2

...practitioners are frequently confronted with unreasonable behaviour. This may come from clients, current or former, or the other side in proceedings, including practitioners. However, pursuant to Rule 10 of the RCCC, practitioners are

1 Standards Committee determination, 19 March 2018.

2 At [18].

required to retain their professionalism in such situations and react in a dispassionate manner.

[13] The Committee acknowledged that Mr QD may have been upset by Mr FZ’s comments, but should have confined his comments to politely noting his disagreement and left the court to deal with the criticisms directed at him. The Committee considered it wholly unnecessary for Mr QD to attack Mr FZ’s reputation, saying:

20. Regardless of the comments made by Mr [FZ], the Standards Committee did not consider that such comments provided good cause for Mr [QD] to provide a memorandum to the court, whether this was in chambers or not, that asserted that Mr [FZ] was both an alcoholic and a compulsive liar, who presented as intoxicated at his personal interactions with Mr [QD]. Mr [QD] would have been aware that such admissions by Mr [FZ]’s own, albeit former, lawyer, could have serious consequences for him. It was of particular concern to the Standards Committee that Mr [QD] appended to his memorandum a copy of Mr [FZ]’s criminal record. This was considered an action taken in bad faith, and which was clearly intended to convey an unfavourable view of Mr [FZ] and his conduct to the court.
    
21. Further, it should be remembered that, even if a retainer has ended, a lawyer has an obligation not to disclose confidential information about a former client. The definition of confidential information and include public information such as an individual’s criminal record.
    
22. It was the view of the Standard Committee that a simple statement to the effect that Mr [QD] disagreed with Mr [FZ]’s comments would have sufficed in the circumstances.
    

[14] The Committee was satisfied that Mr QD had contravened rr 10 and 13.8 of the Rules and that his conduct was unsatisfactory pursuant to ss 12(b) and 12(c) of the Act.

Application for review

[15] Mr QD considers the decision was wrong, would like it reversed and the complaint reconsidered. Mr QD says the Committee:

1. Made an error of fact in saying his memorandum was unnecessary;
   

2. Made an error of law because good cause means an underlying evidential foundation, which he had;
   
   3. Made an error of law that a public record could be confidential information;
      
4. Failed to take into account relevant considerations that he raised in his defence, that:
   
   • (a) neither the Judge nor Legal Aid took any issue with his memorandum;
     
     • (b) the LCRO205/2014 decision to which he referred which says that disciplinary action is not necessary for every breach;
       
     • (c) the Committee overlooked the possibility of alternate dispute resolution, particularly in light of the apology he offered;

• (d) there was no prejudice to Mr [FZ], no risk to future clients given his experience of over 30 years into different jurisdictions,
  • (e) he was subject to racist and “not politically” correct comments and taunts of Mr [FZ];
    
  • (f) He should have received a warning; and/or his explanations or justifications for why he did what he did, which was at worst a one-off error in judgement;
    
  • (g) the Committee failed to take into account section 14 of NZBORA and his right to put up a defence to scandalous and defamatory allegations made in open court and in his absence, when he had good cause to withdraw;
    
  • (h) to consider the concept of an “in chambers” memorandum to respond and explain;
    
  • (i) failed to take into account the fact that truth is a legitimate defence;
    
  • (j) failed to take into account the media interest in Mr [FZ]’s outburst in his absence, in open court, then sought an explanation from him.
    
  
  

[16] Mr [FZ] describes Mr QD's memorandum as untrue, malicious, and a “bolt out of the blue”.

Review Hearing

[17] Both parties and their support persons attended a review hearing in Auckland on 9 October 2018.

Nature and scope of review

[18] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:3

... 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.

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

[19] More recently, the High Court has described a review by this Office in the following way:4

A review by the LCRO is neither 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.

Discussion

[20] It is helpful to start with the definitions set out in s 6 of the Act.

[21] Mr FZ had instructed Mr QD to appear as his advocate before a New Zealand Court. Court advocacy is an area of work the Act reserves to lawyers. “Reserved areas of work” fall under the definition of “legal work”. “Legal services” means services that a person provides by carrying out legal work for any other person”. It is fundamental to the latter definition that the lawyer doing legal work is not doing it for him or herself, but for another person.

[22] Mr QD’s professional relationship with Mr FZ broke down. Mr FZ did not want Mr QD to do any more legal work for him. He terminated Mr QD’s retainer on 2 February 2017. From then on, although Mr QD was without instructions, he was still providing regulated services under the Act. That is because the definition of legal work includes “any work that is incidental to” the reserved areas of work.

[23] As Mr QD was a lawyer acting in litigation, his overriding duty was to the court concerned. Subject to that, he had a duty to act in the best interests of his client, and without regard for his own personal interests.5 He was also obliged to promote and maintain proper standards of professionalism in his dealings.6

[24] Mr QD should have told the Court on 2 February 2017, or as soon as possible thereafter, that Mr FZ had terminated his retainer and sought leave to be excused from appearing on 8 February 2017. Those obligations flow from the duty imposed by r 13. Mr QD could have advised the Court that he had notified legal aid so that aid could be transferred. As Mr FZ’s email of 2 February 2017 in which he dismissed Mr QD and told him he would be meeting with LSA was uncontentious, he could perhaps also have attached that.

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

5 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 13.

6 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 10.

[25] Mr QD should have communicated with the Court, but he did not. That is why he found himself in the position of having to respond to the criticisms Mr FZ went on to make of him on 8 February 2017. The difficulties that followed for Mr QD were of his own making. If Mr QD had already communicated with the Court, it would not have had to ask him for any explanation. He would already have provided one.

[26] Instead, Mr QD received the Court’s direction via the Crown on 8 February 2017. Mr QD should have filed a memorandum apologising for his absence, saying Mr FZ had dismissed him, was instructing alternate counsel via LSA and Mr QD had understood, incorrectly, that it would not be necessary for him to attend Court. Perhaps he could have attached Mr FZ’s email of 2 February 2017.

[27] It was the memorandum from the Crown conveying the Court’s direction and the comments Mr FZ is said to have made in open Court that prompted Mr QD’s response, not Mr QD’s conscientious adherence to his duty to the Court. The Judge should not have had to remind him that his position in relation to Mr FZ’s matter needed to be updated on the Court record.

[28] Mr QD then took the direction as an invitation from the Court to lay out his experience of his professional relationship with Mr FZ. He responded to comments he understood Mr FZ had made about him in open Court. He says he understood that was what he had been directed to do, checked with the Court Registrar to be certain, and was told to provide a full explanation.

[29] Mr QD cannot share responsibility for his conduct with others. As counsel, it was consistent with his duty to the Court to convey to it the fact that he was without instructions in Mr FZ’s matter. Given the proximity of Mr FZ’s next appearance, that was reasonably urgent.

[30] Mr QD says he was hurt by the comments Mr FZ had made about him. The memorandum he drafted and filed in Court exemplifies that. Paragraphs 1, 4, 5, 6, 10 and 11 of the memorandum are extraordinary. The message that he is without instructions is there, but it is immersed in language that is defensive, emotive, insulting and unnecessary.

[31] The memorandum is self-serving. It is entirely inconsistent with the fact that Mr QD was rounding off the legal work he was carrying out for Mr FZ. For a memorandum prepared by a lawyer and filed in Court, it is a striking example of a document that completely lacks the temperate, moderate, neutral language that marks out documents lawyers routinely file in Court in the course of providing legal services to another person. If Mr QD did not know that, he should have.

[32] Mr QD was obliged to promote and maintain proper standards of professionalism in all his dealings. The memorandum was inconsistent with that obligation. What makes the conduct worse, is that it was avoidable.

[33] From the Court’s perspective, as Mr QD had not given it notice that Mr FZ had terminated their retainer, the only purpose of the memorandum can have been to obtain an explanation from Mr QD for his absence, albeit late, so that could form part of the Court record in Mr FZ’s matter. Mr QD says he was obliged to send a copy to LSA because Mr FZ was a legally aided person who had made a complaint, and Mr QD’s funding agreement with LSA required him to.

[34] It is no excuse for Mr QD to rely on the belief that Mr FZ had stirred up trouble for him.

[35] I agree with the Committee’s view that Mr QD needed only to record his disagreement with the criticisms Mr FZ is said to have made of him in the broadest of terms, if at all. Instead, he deliberately chose a path that escalated a problem which was fundamentally of his own making. If good judgment had prevailed, Mr QD would have quietly closed his involvement with Mr FZ’s matter down with as much dignity as he could muster.

[36] Whether or not Mr QD had good cause, in the sense of an evidential basis for the allegations he made against Mr FZ, as r 13.8 requires, is something of a distraction from the professional standards issues that arise from his conduct.

[37] Mr QD did not tell the Court his retainer had ended. He had to be directed to do so. In response to the direction, Mr QD filed a memorandum in terms that were not consistent with his obligation to promote or maintain proper standards of professionalism in his dealings and was entirely inconsistent with his obligation to put Mr FZ’s interests ahead of his own personal interests. The collection of missteps on the part of Mr QD is such that the memorandum cannot be described as a professional slip. In context, his conduct was unacceptable.

[38] The paragraphs that follow address the significant aspects of the submissions made on review. As to the Committee’s concerns about confidentiality, the footnote to r 8 explains that information acquired in the course of the professional relationship that may be widely known or a matter of public record, such as a client’s criminal conviction, is nevertheless confidential information for the purposes of the Rules. On that basis, it seems unlikely the Committee made an error of law in that regard, as Mr QD submits.

[39] There is no basis on which to say the Committee overlooked the possibility of alternate dispute resolution in light of the apology Mr QD offered, or otherwise. Section 142(3) of the Act generally enables a Committee to regulate its own procedure in such manner as it thinks fit.

[40] The matters listed by Mr QD as relevant considerations the Committee failed to take into account are all matters Mr QD raised in his correspondence to the Committee or available options under the Act. It is not apparent that the Committee failed to take them into account. Mr QD’s real objection is that the Committee was not persuaded by his submissions, for example that Mr QD gave evidence that Mr FZ had taunted him with racist and “not politically” correct comments. That information was all before the Committee. There is no reliable basis on which to suppose the Committee did not take notice of that evidence. It has all be considered again on review.

[41] It is accepted that disciplinary action is not necessary for every breach and that the facts do not disclose that Mr QD generally presents as a risk to future clients. It is also noted that Mr QD sought to have matters dealt with “in chambers”. However, if Mr QD had filed a memorandum and attached a copy of Mr FZ’s email earlier, Mr QD would have been on record as having been told to take himself off the record in Mr FZ’s matter. Any remarks his former client might have made would have been interpreted by the Judge accordingly.

[42] It is accepted that Mr QD has rights under NZBORA and that the truth is a legitimate defence to defamation. Those are not arguments for this jurisdiction.

[43] Except for the fact that Mr QD wanted to protect his own interests, it is not clear why any curiosity on the part of the media might be relevant to his conduct. If Mr QD had filed a memorandum promptly on his retainer being terminated, the end of his retainer would already have been a matter of Court record. That would have effectively deprived Mr FZ of the ability to say anything very much, which in turn would probably have left nothing of any interest for media to latch onto.

[44] Mr QD believes that, at worst, the Committee should have given him a warning because his explanation and justifications for his conduct adequately account for his conduct. Mr QD says the worst that can be said of his conduct is that it was a one-off error in judgement. Given the overall context of the conduct under consideration, those arguments are rejected.

[45] Whether or not there was prejudice to Mr FZ, and whether the Judge or LSA took issue with the memorandum are irrelevant to whether Mr QD’s conduct met minimum standards or fell below them.

[46] All of the materials available on review have been carefully considered, including all of the parties’ written submissions and their comments at the review hearing.

[47] There is nothing in those materials that warrants modifying or reversing the Committee’s determination that Mr QD’s conduct was unsatisfactory pursuant to s 12(b) and (c), or the orders it made.

[48] Mr QD’s conduct was regarded as unacceptable by the lawyers of good standing on the Committee. Given its context, I agree with the Committee’s view that Mr QD’s conduct fell below the standard set by s 12(b). It also fell below the minimum standards imposed by the Rules. It was inconsistent with r 13 and, with reference to Mr FZ’s complaint, r 10.

[49] For the reasons set out above, the determination that there has been unsatisfactory conduct on the part of Mr QD is confirmed.

Consequential Orders

[50] The Committee ordered Mr QD to pay a fine of $1,500 and costs of $500. There is no reason to modify or reverse the consequential orders. Those are confirmed.

Publication

[51] Pursuant to s 206(4) a direction is made that this decision is published with all identifying features removed.

Costs

[52] Section 213 of the Act allows a LCRO to order costs on review. Reference is made to the LCRO Costs Orders Guidelines and the amounts set out therein. Mr QD has been unsuccessful in his application for review following a review hearing attended by both parties. The standard amount for a straight forward review where there has been a hearing in person is $1,200.

[53] Pursuant to s 213, Mr QD is ordered to pay costs on review of $1,200 accordingly.

Decision

[54] Pursuant to ss 211(1)(a), 12(b) and (c) and 152(2)(b)(i), 156(n) and (i) of the Lawyers and Conveyancers Act 2006, the determination that there has been

unsatisfactory conduct on the part of Mr QD and orders that he pay a fine of $1,500 and costs of $500 are confirmed.

[55] Pursuant to s 213 of the Lawyers and Conveyancers Act 2006 Mr QD is ordered to pay costs on review of $1,200 within 30 days of the date of this decision.

[56] Pursuant to s 215 of the Lawyers and Conveyancers Act 2006 the order that Mr Mr QD pay costs of $1,200 pursuant to s 213 of the Lawyers and Conveyancers Act 2006 is enforceable in the District Court.

[57] Pursuant to s 206(4) of the Lawyers and Conveyancers Act 2006 a direction is made that this decision be published with identifying features removed.

DATED this 12TH day of October 2018

D Thresher

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 QD as the Applicant Mr FZ as the Respondent

Mrs WD as the Related Person [Area] Standards Committee [X] New Zealand Law Society Secretary for Justice