SW v HB [2018] NZLCRO 110 (31 October 2018)

Last Updated: 29 November 2018

	LCRO 75/2017 210/2017 212/2017
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
BETWEEN	SW Applicant and Respondent
AND	HB Respondent and Applicant

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

DECISION

Introduction

[1] Ms SW and Ms HB, both of whom are lawyers, applied for reviews of decisions by the [Area] Standards Committee (the Committee). The Committee decided to take no further action in relation to Ms SW’s complaint about conduct on the part of Ms HB. However, the Committee decided, on the basis of matters raised in Ms HB’s complaint, that there had been unsatisfactory conduct on the part of Ms SW in two respects, one arising from Ms SW having served a disclosure notice; the other from sending a letter regarding proposed defamation proceedings.

Background

[2] Ms HB acted for the Board of Trustees for Organisation A (the Board) and provided it with advice which touched upon the Board’s employment relationship with Mr MR. She continued to act when a dispute arose between the Board and Mr MR.

[3] Ms SW acted for Mr MR.

[4] The dispute was finally resolved by the Employment Court, with leave to appeal that decision on points of law being refused. With the employment processes exhausted, Ms HB made a complaint to the New Zealand Law Society (NZLS) regarding Ms SW’s conduct in the course of acting for Mr MR. In responding to the escalating allegations advanced by Ms HB, Ms SW formally complained that Ms HB’s complaint had been made for an improper purpose and her conduct towards Ms SW and Mr MR fell below proper professional standards.

[5] Both decisions are the subject of applications for review by Ms SW. Ms HB also applied for review of the decision in which Ms SW’s conduct was found to be unsatisfactory, essentially on the basis that the Committee had not gone far enough, and Ms SW’s conduct towards her should be the subject of misconduct charges laid before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal). For the reasons that follow, that contention is firmly rejected.

History

[6] Mr MR had been employee of the Board for a number of years. He took time off work on medical grounds then, with advice and assistance from Ms HB, the Board terminated his employment. Mr MR’s claims against the Board included disadvantage and dismissal that was unlawful and unjustifiable with the Board having:1

[paragraph omitted].

[7] The Board denied Mr MR’s claims and maintained that his dismissal was justified on grounds of medical incapacity.2

[8] Ms HB accompanied two members of the Board to mediation. Ms SW attended with Mr MR. Although the mediation was confidential pursuant to s 148 of the Employment Relations Act 2000 (ER Act), it seems from the complaint that Ms HB later made to NZLS that Ms SW advocated strenuously for Mr MR, and Ms HB found Ms SW’s approach difficult to deal with. It is apparent from her complaint that Ms HB found it impossible to reconcile her understanding of the facts with the position Ms SW advanced on Mr MR’s behalf.

[9] Mr MR did not settle his claim at mediation and progressed his claims, including an application for reinstatement, to the Employment Relations Authority (ERA).

1 [Footnote Omitted].

2 At [5].

[10] Ms HB, who says she had only recently gone into practice on her own account, and had no previous litigation experience, accepted the Board’s instructions to act for it in the ERA and suggested the Board instruct counsel. The Board accepted Ms HB’s advice and she instructed Mr GK. Ms HB as instructing solicitor, and Mr GK as counsel, represented the Board throughout the ERA and Employment Court processes in opposition to Ms SW representing Mr MR.

[11] The ERA process unfolded in the usual way. Documents were requested and provided. Arguments were made over admissibility and resolved. An interim hearing was set down so an ERA member could decide whether to order the Board to reinstate Mr MR.

[12] Shortly before the interim hearing was due to commence on [Date], Mr MR became aware of a media article that Ms SW says was deeply concerning to him. The article included a statement attributed to Mr QT, who had been the Board Chair. Mr MR is said to have considered the article reported comments that were defamatory of him and harmful to his reputation in the local community. He instructed Ms SW to take immediate action to protect his interests.

[13] A letter to Ms HB and Mr GK followed from Ms SW’s office, bearing Ms SW’s electronic signature (the defamation letter), which said:

1. We write in regard to an article published in Newspaper A and on Website B, a copy of which is attached.
   
2. The article refers to issues that are being experienced by Organisation A and contains a quote from Mr QT, who appears to be acting in his capacity as Chairman of the Organisation A Board. Mr QT says, in reference to HB “He is no longer working for us”. This comes after a paragraph which says that Mr MR hasn’t resigned, but has left the role with lawyers involved.
   
3. The clear inference to a reasonable reader is that Mr MR has been fired. There are other possible inferences as to issues with his competence as Operations Manager, in that the issues may have been Mr MR’s fault.
   
4. Would you please confirm whether Mr QT was indeed acting in his capacity as Chairman of the Organisation A Board, as we have instructions to begin proceedings in regards to defamation.
   
5. We request that Organisation A stop damaging our client’s reputation. This communication is without prejudice to any issues of damages/costs in respect of defamation.
   

[14] The interim hearing proceeded with evidence given orally and by affidavit and submissions made by counsel for both parties. The ERA reserved its determination. Ms SW then arranged for her office to withdraw the defamation letter to allow Mr MR a better opportunity to consider what, if anything, he wanted to do about the article.

[15] The timing of the defamation letter being sent and withdrawn came to assume some significance in Ms HB’s complaint, and gained traction with the Committee, resulting in the first of the two unsatisfactory conduct findings made against Ms SW.

[16] The ERA’s reserved determination followed the interim reinstatement hearing. Although Mr MR was not reinstated, the Member found “it at least arguable that [the Board] acted prematurely in dismissing” him.3

[17] The substantive hearing before the ERA followed in [Date] when it considered Mr MR’s substantive grievances and whether he would be permanently reinstated. The ERA decision that followed records that the Board, and Ms HB on its behalf, communicated with Ms SW and Mr MR regarding his employment and the termination of the employment relationship. The ERA Member noted an issue had arisen and been addressed over the admissibility of email exchanges between Ms HB and Ms KN, an HR adviser. The issue was determined on the basis of written advice from another member who had seen all of the emails Ms HB had sent to Ms KN and that Member’s view that all of them were “covered by professional legal privilege”.4 The ERA considered and dismissed each of Mr MR’s claims. Reinstatement therefore did not arise. Costs were reserved.

[18] It is apparent from Ms HB’s subsequent complaint that she was still at that stage having difficulty reconciling the position Ms SW was advancing for Mr MR with her own perspective on their clients’ situations.

[19] Mr MR filed an appeal to the Employment Court. Procedural steps followed, and the hearing took place on [Date]. The Employment Court delivered its reserved decision on [Date]. The business relationship between Ms KN and Ms HB came under scrutiny in the Employment Court. Ms SW had discovered that Ms KN’s website advertised Ms HB as the “Employment Law Specialist” in Ms KN’s HR firm’s team. Ms SW questioned Ms KN about her business relationship with Ms HB. Ms KN replied that Ms HB was an “independent solicitor but at times they work together with the same clients”. Ms KN said that when she had first been instructed by the Board, Ms HB had sent her information that included advice Ms HB had provided to the Board before Mr MR’s employment came to an end.5 Those matters also came to assume some significance for Ms HB in her complaint to NZLS.

[20] The Employment Court discovery process had resulted in disclosure of document 700 which had not been before the ERA when it conducted its investigation.

3 [Footnote Omitted].

4 [Footnote Omitted].

5 [Footnote Omitted].

The Employment Court recorded Ms SW’s comment that document 700 was a “game changer”. She relied on it in support of her theory that the Board had predetermined a master plan to terminate Mr MR’s employment. Document 700 was a record of a “confidential Special Board Meeting to discuss Mr MR” dated [Date].6 Mr CI, the Board member who gave evidence before the Employment Court, had not been present at the meeting on [Date]. However, he had been delegated the task of speaking to the Board’s lawyer and had met with Ms HB on [Date].

[21] By email to the Board, Ms HB had confirmed the advice she had discussed with Mr CI. Ms HB then sent that email and other correspondence to Ms KN, and it was among the documents the ERA member had decided were privileged to the Board. However, the Employment Court took a different view. It considered that the usual protections did not apply to that email because it “was later sent by Ms HB to a third party, KN Consultants Ltd” thereby waiving privilege. The email containing Ms HB’s advice was produced into evidence as Document 883.7

[22] Document 883 also assumed some significance for Ms HB in her complaint because she felt that the email in isolation did not present a fair picture of the advice she had given to the Board. In essence, Ms HB’s view is that if she had been called to give evidence she could have explained her advice to the Court and the proceeding would have had an entirely different ending.

[23] However, although the Board members who had attended the [Date] meeting were available neither party called them to give evidence. Ms HB, who was acting in the proceeding for the Board, was also not called.

[24] Within the broader context of the evidence before the Court, documents 700 and 883 spoke for themselves.

[25] The Employment Court also referred to “[Date] when Ms HB sent a letter to Mr MR copied to Ms SW”. The letter of [Date] was on Ms HB’s firm’s letterhead and signed by her. It said:

HB

c/- SW [Date]

HB – Sick Leave

6 At [22].

7 At [25].

As you are aware you have been certified unfit for work indefinitely since [Date] and have not been carrying out usual duties associated with your position since that time.

A month has now elapsed and we now seek an update as to your current medical status and prognosis as [to] when you might be fit to return to work.

Organisation A is prepared for you to provide an update in one of two ways:

1. Either a further medical certificate from your general practitioner (Dr DA); or
   
2. Organisation A are prepared to have you examined by a registered medical practitioner nominated by Organisation A at its cost with the results of the examination to be made available to Organisation A and yourself.
   

We would expect to hear from you in terms of either receiving a further medical certificate from your Medical Practitioner or you making an election to be examined by Organisation A appointed Registered Medical Practitioner within 7 working days, i.e. no later than 5.00 pm on [Date}.

It is important that you either provide Organisation A with an updated medical certificate within the time period specified above or advise us through your Solicitors that you wish to be examined so that we can put the appropriate arrangements in place with you.

Yours faithfully HB

[26] That letter was of some significance to both lawyers in the complaint processes that followed. Ms SW replied on [Date] asking Ms HB to direct all correspondence to her and not to communicate directly with Mr MR, who Ms HB knew was represented by Ms SW in the matter. Ms SW said that a further breach of the rule prohibiting direct communication with another lawyer’s client may give rise to a complaint to NZLS.8 Ms HB says she sent her letter of [Date] directly to Ms SW, not to Mr MR, and Ms SW has produced no evidence of her having communicated directly with Mr MR in breach of the rule at all. Ms HB thinks Ms SW’s letter has no basis and found it threatening. Unlike the privileged correspondence between the lawyers and their clients, that correspondence was available in the Employment Court proceeding and helped to inform its decision.

[27] The Employment Court Judge said:9

[Paragraph redacted] ...

8 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 10.2.

9 [Footnote omitted].

[28] Reference was made to document 883, Ms HB’s advice to the Board on its legal options, which:10

[Paragraph redacted] ...

[29] The ultimate decision to terminate Mr MR’s employment is described as “casual and off-hand”, with the Board not having seen the memorandum and termination letter (Ms HB had prepared) before they were sent to Mr MR. The Court refers to “process failures by the Board...[that] were significant and unrelenting” and to the Board’s failure to follow the procedure prescribed in Mr MR’s employment agreement.

[30] Mr MR established his claim of unjustified dismissal. He was not reinstated but was awarded compensation and costs. Mr MR’s brother, who had earlier attended a judicial settlement conference, gave evidence in support of the claim for compensation. That too became the subject of Ms HB’s later complaint to NZLS.

[31] On advice from new lawyers, the Board sought leave to appeal on four points of law. Leave was declined.

[32] Ms HB then set out her experience of the litigation with a focus on Ms SW’s part in that, in a lengthy and detailed complaint to NZLS.

Complaint

[33] Ms HB’s complaint runs to 27 pages, has 14 attachments and 11 separate components. Ms HB’s list of complaints about Ms SW include bullying, verbal abuse, intimidation of Ms HB and others, issuing threats, denigrating her and what might best be described as “sledging”. Ms HB believes Ms SW is beyond rehabilitation, should be struck off and is unfit to supervise junior lawyers like Mr YL (an employee of Ms SW’s whose conduct was the subject of a separate Standards Committee complaint file).

[34] Ms HB says Ms SW’s conduct towards her and Mr GK was the absolute antithesis of courtesy and respect, and her behaviour was disgraceful. Ms HB describes Ms SW as remorseless, relentless and nasty, saying she had no regard for her professional obligations, consequences or the credibility of the profession. She alleges deliberate and systematic breaches of professional obligations.

[35] Ms HB is critical of the way Ms SW ran her client’s case and her behaviour in Court, which she suspects was motivated by malice. Ms HB believes Ms SW misled the Court.

10 At [71].

[36] Ms HB gave specifics about the employment mediation on [Date] and said she found the mediation extremely stressful. She says she was extremely upset, embarrassed and humiliated by her experience at the hands of Ms SW.

[37] Ms HB said she was upset by Ms SW’s suggestion that she had broken the rules by contacting Mr MR directly and says he confirmed she had not done so.

[38] For various reasons Ms HB objected to Ms SW sending then withdrawing the defamation letter.

[39] Ms HB says she felt “unsafe” in Ms SW’s presence and she made hearings “a horrible experience”. Ms HB attributes her loss of confidence, feelings of mortifying embarrassment, isolation and distress all to Ms SW’s conduct towards her.

[40] Ms HB is critical of Ms SW’s conduct towards others, including Ms KN and Board members, and of Ms SW’s failure to produce file notes recording the discussions she had had with her client to the Employment Court.

[41] Ms HB refers to what she describes as the misuse of a prescribed form (the reg 42 notice) in a way that was intended to mislead Ms KN.11 Ms HB provided a copy of the lengthy letter Mr GK had written to Ms SW setting out the Board’s position in relation to the reg 42 notice in which the Board sought to rely on the determination made by the ERA that emails from Ms HB to Ms KN were protected from disclosure by privilege.

[42] Ms HB says Mr YL contacted individual members of the Board to find out if they were willing to give evidence that might undermine the Board’s position. Ms HB objected to that as direct communication with her client. Ms SW’s response was that “there is no property in a witness”. Given the earlier exchange of correspondence over Ms HB supposedly having communicated directly with Mr MR, she was offended by what she perceived as a “double standard”.

[43] Ms HB had prepared the bundle of documents for the Employment Court hearing and was involved in assisting the Board with disclosure. A key document, document 700, had not previously been disclosed but was included in the bundle. Ms HB objected to Ms SW’s criticisms of the Board’s failure, under Ms HB’s guidance, to disclose document 700.

[44] Ms HB refers to Ms SW’s out of court comments, in Court mutterings, and open references to “[phrase]” in documents Ms HB had helped prepare. Ms SW is said to have conflated Ms HB with Ms KN in her presentation to the Court, deliberately to mislead

11 See [77] below.

and confuse, or to denigrate Ms HB, and to have deliberately sought out evidence that would paint Ms HB in a dim light.

[45] Ms HB says Ms SW deliberately attempted to prevent her from sitting at counsel’s table by covering it with her own files, then opening those over Ms HB’s to get in her way.

[46] Ms HB objects to Ms SW having discussed page numbers in the bundle with Mr MR in a break when he was under oath. Ms HB relates events disclosed to her by one of the Board members, Mr CI, who was a witness in the proceeding. Ms HB reports Mr CI telling her he had returned to Court to be berated by Ms SW, telling him the Board had the “worst lawyers in the world, and that we had done him a disservice, and that we were arrogant and uncooperative”. Mr CI’s statement was attached to Ms HB’s complaint. In his affidavit, Mr CI says he found Ms SW’s tone “aggressive and intimidating”. Ms HB says the way Ms SW conducted the litigation has taken its toll on the Board and should not be repeated.

[47] Ms SW is said to have launched into a verbal attack on Mr GK and Ms HB when the employment court matter was rescheduled to accommodate Mr GK’s other commitments.

[48] Ms HB, who closed for the Board, protests that Ms SW’s closing submissions were unsustainable on the evidence and that she got a huge strategic advantage that she then used to manipulate and mislead the Court. Ms HB is critical of Ms SW for summoning Board members as witnesses then not calling them as witnesses. She says it was misleading for Ms SW to then tell the Court she did not have the opportunity to call evidence from witnesses, when in fact the witnesses were available, so in reality Ms SW had the opportunity but did not take it.

[49] Ms HB was unable to reconcile the position adopted by Ms SW on behalf of her client with the evidence, and even after matters concluded, seems to have been unable to comprehend Ms SW’s strategy or the submissions she made to the Employment Court, which Ms HB describes as advancing a “conspiracy theory” with no evidential basis.

[50] Ms HB considers her concerns about Ms SW’s ethical deficiencies are vindicated by the fact that she now has evidence in the form of an email sent by Mr MR to Ms SW while he still had access to his work email that demonstrates Mr MR wanted an exit package right from the start. She says:

the fact of the matter is [Ms] SW was aware when she put her theory of the case to the Court and the questions to the witnesses, that it was a lie.

[51] She believes Ms SW’s costs are unreasonable and should be reviewed.

[52] Ms HB says she sought the company of her friends so she would not be alone in Court with Ms SW. Without that support, Ms HB says she may well have closed her practice. Ms HB says:

We do a lot of talking about wellness, mental health and the demise of women practitioners, in particular, from the profession. If we permit practitioners to get away with this type of conduct and treat others in such an appalling way, we are only doing lip service to those issues.

The conduct of [Ms] SW and her firm is exactly the kind of conduct which leads to practitioners, and more importantly the community that we are meant to serve, to lose faith and confidence in the integrity of lawyers and the judicial system.

[53] Ms HB, who attached statements from some of the Board members that echoed some of her concerns, wanted “all the wrongs ...inflicted in this matter” put right. Ms HB wanted Ms SW to deliver a public apology to her and her client.

Ms SW’s Reply

[54] Ms SW denies professional wrongdoing. Her position is essentially that her conduct and strategy were acceptable in the context of the legal services she was providing to her client.

[55] Ms SW replied to many of the individual criticisms levelled at her by Ms HB. Her response refers to the proceeding and its outcome, the Employment Court’s criticism of the Board and Ms HB’s advice. Ms SW referred to the costs consequence to the Board, and the statutory protection s 148 of the ER Act provides for disclosures made at employment mediations (except where public policy dictates otherwise). Ms SW says Mr MR’s recollections are at odds with Ms HB’s and she disagrees with the opinions expressed by Mr CI.

[56] Ms SW addressed the issues raised over the defamation letter, witnesses at trial who had attended the JSC, her perspective on the production of documents by Ms KN and the Board, claims to privilege, the service of witness summonses, authorship of documents, problems with the bundles Ms HB prepared (described as “shambolic”), a potential conflict of interest that Ms HB had not identified, and unintentional slips of the tongue when she mixed up Ms HB and Ms KN for which she apologised.

[57] With respect to her threat to report Ms HB to NZLS for communicating directly with Mr MR, Ms SW says of her response to Ms HB’s letter dated [Date] that:

The letter in question was sent to Ms HB after Mr MR contacted us very upset after receiving an email attaching a letter (from Ms HB) directing Mr MR to take

action and to instruct his solicitors accordingly. Mr MR at the time was on work related stress leave. The letter is in breach of rule 10.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 as it constituted communication directly to Mr MR whom Ms HB was aware was represented at the time. We promptly responded that since representatives have been engaged, proper conduct would be for correspondence to be made through Mr MR’s representative.

[58] Ms SW categorically denies misleading the Court and relies on the Employment Court judgment for support. Ms SW denies bullying Ms HB or anyone else and says no issues over Ms HB’s safety were raised with her. She adds that her conduct has not been the subject of judicial criticism.

[59] Ms SW rounded out her reply with the suggestion that “fulltime coaching may be warranted for Ms HB in the future”.

Ms HB’s response

[60] Ms HB repeated a number of the allegations advanced in her complaint in her reply of [Date]. Ms HB emphasised the email Mr MR sent to Ms SW saying he wanted to exit as soon as possible is irreconcilable with the position Ms SW took on Mr MR’s behalf at mediation, before the ERA and in the Employment Court, by seeking reinstatement.

[61] Ms HB describes Ms SW’s line of questioning in the Employment Court as “misleading”, her theory of the case as “wrong” and the Court as misled because it did not have access to the “true facts”.

[62] Ms HB describes Ms SW’s use of a subpoena to get Ms KN and her documents to Court as an opportunity taken to misled the Court. Ms HB believes Ms SW is being untruthful by not admitting she was discussing Mr MR’s evidence with him while he was under oath and suggests Mr MR himself was economical with the truth. Ms HB regrets not standing as a witness in the proceeding.

[63] Ms HB does not accept that Ms SW conflating her and Ms KN was a slip, saying it happened six times, was “repeated and calculated” and “deliberate bullying”, as were the criticisms of the bundles she had prepared. Ms HB defended the bundles she had prepared and described Ms SW’s criticisms as “another example of another unnecessary, untruthful, and unfounded put down”.

[64] Ms HB says her client declined the advice she and Mr GK gave, to take independent legal advice. Ms HB says Mr GK shares her concerns over Ms SW’s conduct, and objects to the fact that Ms SW did not address every one of her concerns she raised.

[65] Ms HB added further to her complaint with reference to a media report in which Ms SW is said to have drawn the journalist’s attention to the Employment Court’s decision and the costs award.

Ms SW’s reply and complaint

[66] Ms SW’s response of [Date] repeats her concern that “Ms HB is in urgent need of guidance and counselling in relation to her practice and conduct” and registers her concerns as a formal complaint that Ms HB’s complaint was made for an improper purpose. Ms SW expressed her reluctance at making a formal complaint about Ms HB’s conduct “due to her acknowledged inexperience”, but considered her response of [Date] was “beyond the pale” in that:

It contains serious and potentially defamatory accusations in relation to myself and my client. Such allegations simply cannot be dismissed on the basis of inexperience. They indicate Ms HB has serious problems in respect of her understanding of professional standards and practice.

[67] Ms SW says her complaint is made pursuant to r 1.4 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the rules) in respect of Ms HB’s:

false and misleading actions, her fitness to practice, bringing the legal profession into disrepute and using the complaints process for improper purpose so as to cause embarrassment, distress and inconvenience to Mr MR and myself, our respective reputations interests and reputation (Rules 2.3 and 2.10).

[68] Ms SW says Ms HB’s:

Improper accusations that Mr MR perjured himself and the claims that he and I are “liars” are untested and false allegations ... In particular we refer to paragraphs 36.1 and 42.2 of Ms HB’s letter of [Date]:

“That was Mr MR’s evidence. That does not mean it was truthful.” And,

“Ms SW cannot rely on the findings of the Court that are a direct result of her misleading submissions to justify her breaches”.

[69] Ms SW observes that Ms HB appeared to have taken no steps to check the veracity of her statements before making them and that “Mr MR’s evidence was tested in cross examination and accepted by the Court”.

[70] Ms SW sees Ms HB’s correspondence as implying that she is “unprofessional, untruthful and behaved in a grossly improper manner” and considers it is motivated by improper purpose. Ms SW refers to Ms HB’s obligation to treat other lawyers with respect and courtesy and says that instead Ms HB treated her with “contempt and odium” both

in the complaint process and “at the hearing”. Ms SW refers to an affidavit sworn by Mr MR in opposition to the Board’s application for leave to appeal, in which he describes the conduct of the Board’s lawyers as “marred by arrogance and lack of cooperation”.

Ms HB’s Reply

[71] Ms HB’s response followed in a similar vein. She said she had been “subject of the most appalling treatment” by Ms SW who totally disregarded the “rules of engagement” in litigation. Ms HB says her sole motivation was to “bring this conduct to a stop so it never happens to anyone else ever again”. Ms HB says she could think of no more genuine purpose than that.

[72] Ms HB said she believed Ms SW had failed to disclose a key document, and her complaint was a continuation of her attempts to control and bully her. Ms HB says she has been to “hundreds of employment mediations” and had never been spoken to as Ms SW had spoken to her that day. Ms HB had never seen conduct she could compare with Ms SW’s and considered it was her duty to call her to account. She describes the contents of her own complaint recording Ms SW’s conduct as “disturbing”.

[73] Ms HB provided affidavits sworn by Mr GK and Ms JF, a friend and colleague. Mr GK confirmed Ms HB had made her feelings about Ms SW clear to him, but expressed no personal view.

[74] Ms JF generally confirmed Ms HB’s reports of her feelings in the course of the legal processes and added her own observations of, and opinions about events she had observed. Ms JF described Ms SW’s case against the Board in the following way:

From what I observed during the Employment Court hearing, it appeared [Ms SW] held [Ms HB] responsible for being the “mastermind” behind HB’s termination. At one point [Ms SW] stated that she had “slayed the dragon” which I took to mean [Ms HB].

[75] Ms JF says Ms SW made many disparaging comments to Ms HB and Mr GK during the proceeding, and she shares Ms HB’s views about Ms SW’s conduct. Ms JF describes Ms HB as an effective representative but an inexperienced litigator.

Further Correspondence

[76] Ms SW responded to the further concerns Ms HB had raised and says Ms HB’s complaints are invalid and lack merit.

[77] The Committee wrote to Ms SW asking her to respond to a “potential issue” Ms HB had raised in relation to a Notice Ms SW had sent to Ms KN pursuant to reg 42 of the Employment Court Regulations 2000 requiring disclosure (the reg 42 notice).

[78] Ms SW’s response was that she had not discussed the reg 42 notice with Ms KN, who had not responded to it. Ms SW says the reg 42 notice was of no effect because Ms KN was not a party to the proceeding and she objects to Ms HB having made an issue of it outside the proceeding for a number of reasons. Ms SW says the discovery issue was dealt with by the Court through a different legal process. Ms SW’s position is that her issuing the reg 42 notice does not constitute a professional standards issue.

[79] Correspondence was exchanged between NZLS, Ms HB and Ms SW, and the Committee issued a Notice of Hearing dated [Date] listing two specific issues for its consideration: the reg 42 notice and the defamation letter. The Notice of Hearing referred to a question over Ms SW’s supervision of Mr YL, issues about Ms SW’s competence and diligence, whether lawyers of good standing would regard Ms SW’s conduct as unacceptable, unbecoming or unprofessional, and whether Ms SW’s conduct amounted to unsatisfactory conduct or could amount to misconduct. The Notice of Hearing referred to the possibility of charges being laid at the Tribunal and the orders the Committee might make, including publication.

[80] Ms SW asked to be heard in person and requested further information. Counsel for both parties provided submissions both focussing on the two main issues in the Notice of Hearing.

Submissions on behalf of Ms HB

[81] Mr EO QC, counsel for Ms HB tendered vigorous arguments in support of the position taken by Ms HB. Much is made of the reg 42 notice in support of the submission that Ms SW’s actions were “calculated, cynical and deliberate” and in breach of rr 2.3, 13.1, 13.2 and 13.9.3 of the rules. Counsel lists several features of Ms SW’s conduct as “aggravating features”.

[82] Counsel for Ms HB argues that Ms SW’s conduct cannot be construed as unsatisfactory conduct because it was not a “mere slip or oversight”, but is instead misconduct as defined in s 7 of the Lawyers and Conveyancers Act 2006 (the Act) in that it would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable, and consists of an unlawful or reckless contravention of the rules mentioned in paragraph [79] above. Counsel submits Ms SW intended to mislead a member of the public and to subvert the Employment Court process and acted in stealth

so Ms HB and Mr GK were unaware that she had issued the reg 42 notice. Reference is made to the need for public protection.

[83] Counsel speculates over Ms SW’s strategy, intentions and supervision of Mr YL in relation to the defamation letter and repeated Ms HB’s concerns about its potential impacts on the Board Chair, the Board and Mr MR. Counsel is critical of Ms SW’s supervision of Mr YL and alleges breaches of rr 2.3, 2.7 and 13.3 on the basis that Ms SW threatened defamation proceedings against the Board Chair with the improper purpose of intimidating him into settlement without a legal basis and without Mr MR’s instructions. Misconduct is alleged on the basis that Ms SW’s conduct would be regarded by lawyers of good standing to be disgraceful or dishonest and breached practice rules and was a deliberate attempt to put pressure on the Board Chair to bring about settlement.

[84] The remaining complaints are said to add context to the submissions and support the general premise that Ms SW should face misconduct charges. Ms SW’s conduct is described as “wrong and unethical”, subversive, grave and said to go “right to the heart of the integrity of the litigation system which relies upon practitioners to act in accordance with the rules, with honesty and for proper purposes”. Her responses are described as evasive, and her cross complaint about Ms HB’s conduct as “unfounded”.

[85] Counsel submits Ms SW treated the Committee process with contempt and it should consider a referral to the Tribunal.

Submissions on behalf of Ms SW

[86] Mr PV QC, counsel for Ms SW, wrote to NZLS requesting clarification of the scope of the Committee’s inquiry with reference to Ms HB’s complaint and the two particular matters identified in the Notice of Hearing.

[87] He was advised to focus his submissions on the two particular matters the Committee had identified, and to reserve Ms SW’s position in relation to the other aspects of Ms HB’s complaint. Mr PV’s submissions proceed accordingly, but with a number of reservations about the fairness of Committee’s procedure and the implications for practitioners about being the subject of professional complaint. Mr PV requested a copy of the decision determining Ms HB’s complaints about Mr YL’s conduct and repeated Ms SW’s request that she be heard in person.

[88] In relation to the two issues identified in the Notice of Hearing, Ms SW’s position is:

• (a) Reg 42 notice
  
  • (i) Serving the reg 42 notice was a procedural mistake made with no improper purpose and no intention to mislead. The position advanced by Ms SW, that Ms HB had waived the Board’s privilege over the advice she had given it by passing her advice on to Ms KN, was upheld by the Employment Court and the Court of Appeal.
    
  • (ii) Ms SW’s view of Ms HB’s early advice to the Board was that it was a primary document, “important and... decisive in the case”. There was more than one procedure for seeking disclosure, and Ms SW made several attempts to ascertain the full range of documents that might properly be discoverable at various stages of the proceeding.
    
  • (iii) Although she had attempted to gain access to discoverable documents by other means, and had sought directions from the Court over discovery, Ms SW came to the view that applying to the Court for a witness summons, or subpoena, was the most suitable and expedient alternative by which to have Ms KN, who had not been joined as a party, produce documents in her possession or under her control for inspection. Ms SW applied to the Court for the subpoena accordingly, that was issued and served.
    
  • (iv) Ms KN was told by Mr GK not to bring or produce her files but then obtained independent advice, gave evidence and produced documents relating to the work she had done for the Board.
    
  • (v) The question of whether the Board’s privilege had been waived was aired in Court and determined in that forum. It is submitted, in accordance with the findings of Employment Court and Court of Appeal, that passing the advice on to Ms KN broke the chain of privilege as a matter of fact, making Ms HB’s advice to the Board discoverable, admissible and a document that ought to have been disclosed in the first place.
    
  • (vi) Counsel says there remain unanswered questions over whether the Board had instructed Ms HB to pass her advice on to Ms KN, and whether the Board understood the consequences of that course of action.

• (b) Defamation letter
  
  • (i) The event that gave rise to the defamation letter being sent was Mr MR seeing an article that mentioned him by name in what he considered to be defamatory terms. He is said to have been deeply concerned about the article, “was angry and his immediate reaction was strong”.
    
  • (ii) Ms SW says Mr MR instructed her to write to the Board’s representative, an electronically signed letter was drafted and sent from Ms SW’s office to Ms HB accordingly.
    
  • (iii) Ms SW’s position is that there were good grounds for sending the letter and she had clear instructions to do so.
    
  • (iv) Ms SW says that on reflection she “began to wonder whether her instructions were sufficiently clear” and whether sending the letter was in Mr MR’s best interests because his instructions had been given at a time when he was upset and emotional. Ms SW wanted to be certain, and with Mr MR’s interests at the forefront of her mind, withdrew the letter.
    
  • (v) Mr MR later acknowledged that he had instructed Ms SW to send the letter.
    
  • (vi) Sending the letter was justified and reasonable in the circumstances, and in accordance with the instructions Mr MR had given, but was withdrawn by Ms SW out of an abundance of caution, shortly after being sent, with no harm to anyone and no effect on the proceedings. Considering it better protected her client’s interests for her to do so at the time, Ms SW accepted responsibility for the letter having been sent.
    
• (c) Counsel submits that neither Ms HB nor “any other person involved in the dispute suffered any prejudice in relation to the disclosure notice or the letter”. Contraventions of the rules are denied, and counsel submits Ms SW met her obligations as an Officer of the Court and to her client Mr MR.
  

[89] In reliance on Auckland Standards Committee No 3 v Castles, counsel submits that “it is not the role of a disciplinary body to analyse closely and second-guess every move that counsel makes during each piece of litigation” and there is no professional

conduct on the part of Ms SW that falls below a proper standard.12 Counsel submits any errors on Ms SW’s part were genuine and minor, and she promptly put things right. Ms SW appropriately sought directions from the Court with respect to disclosure and was not criticised by the Court for having done so.

[90] Mr PV followed his submissions with further correspondence drawing attention to the delay of three weeks between the Committee receiving submissions for Ms HB and those being provided to Ms SW. Mr PV said the submissions filed for Ms HB contained:

...unwarranted allegations... expressions of opinion that are, with respect, not supported by the facts; expressed emotively and in such a way as to cause the matter to be amplified to a level that would not be appropriate... the way the submissions for the complainant have been framed and the language used in them have caused Ms SW the most significant distress.

Further submissions for Ms HB

[91] The submissions filed by counsel for Ms HB added depth and volume to Ms HB’s concerns. Counsel’s submissions attach particular significance to the explanations provided by Ms SW and her client in respect of the defamation letter. Perjury is alleged. Focus is brought to Ms SW’s conduct in relation to arguments over privilege and Ms HB’s advice. Counsel also draws attention to correspondence Mr MR sent to Ms SW from his work email address. Included in that correspondence is a comment from Mr MR that he felt his employment was basically over and on [Date] he felt that he “would like to exit the organisation ASAP”. Echoing Ms HB’s view, counsel argued against Ms SW running Mr MR’s case on any basis that was inconsistent with that instruction.

Further submissions for Ms SW

[92] Mr PV provided detailed submissions in reply which include a submission that “the facts are not deserving of these serious allegations. They do not deal fairly with the position as Ms SW has recounted it” and “No-one was lying here. No-one was involved in perjury. These are serious allegations that are not warranted”. Reference is made to various parts of the Employment Court transcript, including Mr MR’s evidence that he was open to staying in his employment if the Board fixed the problems he had identified, but he was open to an “exit package” if it did not.

[93] Mr PV also referred to Ms HB’s allegation that Ms SW’s conduct took the form of a “constant pattern of denigrating Ms HB” by Ms SW. Mr PV says:

12 Auckland Standards Committee No 3 v Castles [2013] NZLCDT 53 at [177].

it is not clear where quite harsh comments of this sort come from. They do not relate to issues that the Committee is considering. It is not uncommon for there to be a perceived imbalance between experienced and inexperienced counsel. But as is often said in advocacy training for the Law Society, young and inexperienced counsel will, if well prepared, readily prevail over older, more forthright but less well prepared counsel. It is a matter of preparation and confidence...

[94] Mr PV attached a copy of a screenshot of Ms KN’s website in which Ms HB is held out as the “Employment Law Specialist” in Ms KN’s firm’s team. He set out an explanation of discovery and privilege and reaffirmed Ms SW’s position, that she had no intention of subverting any rightful claim to privilege. It is repeated that the reg 42 notice was simply a mistake. Mr PV reaffirmed that the defamation letter was sent to Ms HB, not to the Board Chair directly, that there was no improper intention behind it being sent or retracted, and that any disadvantage could only have accrued to Mr MR who has not complained.

Standards Committee Decisions

Complaint about Ms SW’s conduct

[95] The Committee listed each element of Ms HB’s complaint, considered all of the materials and identified the key issues for consideration as:

• (a) did Ms SW breach her professional obligations by sending a document to a third party which purported to require disclosure of some material, when there was no such requirement;
  
• (b) did Ms SW breach her professional obligations by sending a letter threatening defamation proceedings to the Board without instructions to do so; and
  
• (c) was it appropriate to take any disciplinary action in relation to the remaining aspects of Ms HB’s complaint?
  

[96] The Committee considered Ms SW’s conduct in issuing the reg 42 notice “amounted to a failure to act competently and unprofessionally”. It did not consider Ms SW’s mistake was minor, and recorded a determination of unsatisfactory conduct pursuant to s 12(b) on the basis of the view it had formed that:

no reasonably competent lawyer, practicing in the field of employment law, would be expected to make an error of this kind. The Court was not an accurate measure of whether the conduct amounted to a breach of Ms SW’s professional obligations as that was not its primary focus when the matter was raised in the context of the proceedings. The Standards Committee is also better equipped

and qualified to determine such matters, being the statutory body that has been specifically assigned to inquire into such matters.

[97] The Committee made a second determination that Ms SW’s conduct had been unsatisfactory pursuant to s 12(b) with regard to the defamation letter. The Committee noted the variations in the explanations Ms SW had provided in the litigation and in the complaint process, ranging from “Mr MR had no knowledge of the letter” to an affidavit in which “Mr MR confirmed he did not give instructions to send the letter”, contrasted with Ms SW’s statement that:

she did have instructions to send the letter, but that she later reached the view that Mr MR may have given the instructions in haste and proceeded to withdraw the letter.

[98] The discrepancies perturbed the Committee.

[99] The Committee’s view was that the letter was provocative, could have been delayed, and should not have been sent without clear instructions having been received and recorded. The Committee considered Ms SW had “erred to a significant degree by failing to take these steps”, was responsible for taking care when she sent the letter and that “her conduct in this regard fell short of the standard required by lawyers”.

[100] As to the balance of Ms HB’s complaint, the Committee considered “Ms SW’s conduct fell within what it would expect to see in a particularly acrimonious employment dispute such as the present case”. The Committee considered that conduct in mediation and court should be addressed by the mediator or the Judge. In the absence of criticism from those bodies, although “her demeanour towards Ms HB had clearly had an emotional effect”, Ms SW’s conduct did not reach the threshold required for further disciplinary action. Further action was not required.

[101] In summary, the Committee said it:

considered that Ms SW’s conduct in respect of the issues explored above constituted a significant deviation from the standards of professionalism required of a lawyer. All lawyers must maintain these standards in order to safeguard both the reputation of the profession and the interests of members of the public who rely on lawyers. Whilst the Standards Committee accepted that Ms SW’s actions may have had a limited effect in the overall context of the dispute between [the Board] and Mr MR, her actions were potentially misleading and, in the view of the Standards Committee, clearly unacceptable.

[102] The Committee was satisfied that Ms SW’s conduct warranted the imposition of significant sanctions to convey its disapproval of her conduct and while it did not order publication of the decision identifying Ms SW, it imposed the following orders:

• (a) censure;

• (b) $5,000 fine; and
  
• (c) $3,000 costs.
  

[103] Both parties disagreed with the Committee’s determination and applied for reviews.

Ms SW’s Complaint about Ms HB’s conduct

[104] In response to Ms SW’s complaint, the Committee considered whether it was appropriate to take any disciplinary action against Ms HB in relation to her conduct in making the initial complaint. It noted r 2.10 which prohibits a lawyer from using the complaints and disciplinary processes for an improper purpose, noted there were clear policy reasons for ensuring the complaints process remained open for legitimate complaints and observed the threshold for finding improper purpose was high.

[105] The Committee was not satisfied Ms HB had acted in breach of her professional obligations in making a complaint about Ms SW’s conduct. It noted the “vivid descriptions” provided by Ms HB of effects on her, and could not detect an improper purpose. The Committee approved of Ms HB’s decision to delay making her complaint until the litigation was over so concern could not be raised about it having been made for the collateral purpose of gaining advantage in litigation. The Committee was satisfied Ms HB was not attempting to re-litigate her client’s matter through the complaints process and considered Ms HB’s concerns were genuinely held. Further action in respect of Ms HB’s complaint was considered unnecessary and inappropriate.

[106] As mentioned above, Ms SW disagreed and applied for a review.

Applications for review

Committee’s determinations of unsatisfactory conduct against Ms SW

Ms HB’s application in relation to the decision on Ms HB’s complaint

[107] Ms HB’s application for review of the Committee’s decision regarding Ms SW’s conduct was the first review application received by this Office. It proceeds on the basis that the Committee:

• (a) did not adequately consider the complaints of failing to disclose key documents and running the case contrary to those documents;

• (b) erred in concluding Ms SW’s conduct fell within normal acceptable limits and that the institutions were adequately able to deal with such matters;
  
• (c) erred in making the decision confidential;
  
• (d) erred in determining that a fine, censure and costs were adequate remedies for the wrong committed; and
  
• (e) erred in determining that this was not a matter appropriate for the Disciplinary Tribunal.
  

Ms SW’s application in relation to the decision on Ms HB’s complaint

[108] Ms SW submits the determinations of unsatisfactory conduct made against her should be reversed because the Committee erred by:

• (a) not hearing from her in person;
  
• (b) making a determination of unsatisfactory conduct in respect of her erroneously sending the reg 42 notice;
  
• (c) making a determination of unsatisfactory conduct in respect of her sending then withdrawing the defamation letter; and
  
• (d) imposing penalties, which were in any event, unduly severe and disproportionate to the nature of the conduct.
  

[109] Ms SW emphasises the difficulties she considers the Committee faced in making credibility findings when it had not heard from parties in person.

[110] As to the reg 42 notice, Ms SW says when it was raised with her she acknowledged she had made a mistake, told the Court and it made no criticism of her for having made a procedural error, sought directions, obtained the documents she had sought to discover pursuant to the reg 42 notice and they were admitted into evidence. She says no harm was done and the fact that Ms KN contacted Mr GK demonstrates she knew to contact a lawyer and was not misled. Ms SW denies any professional wrongdoing, is critical of inconsistencies in the internal logic of the decision and says the Committee failed to address submissions made on her behalf.

[111] Ms SW denies a lack of care in sending the defamation letter and maintains that she considered retracting it early on was in her client’s best interests. Ms SW says no

harm was done and is critical of the Committee for failing to address submissions made on her behalf.

Ms SW’s application for review of the Committee’s decision on Ms HB’s conduct

[112] Ms SW considers the Committee erred by:

• (a) finding that Ms HB had not made a complaint for an improper purpose given her allegations of misrepresenting and deceiving the Court, perjury and untruths in evidence, making misleading submissions;
  
• (b) not hearing from Ms SW in person and by ignoring her serious and valid concerns about Ms HB’s conduct;
  
• (c) deciding Ms HB’s conduct did not warrant further action;
  
• (d) wrongly implying improper conduct on the part of Ms SW;
  
• (e) sanctioning and endorsing the making of unsubstantiated claims against Ms SW and Mr MR;
  
• (f) permitting Ms HB to misuse the complaint process; and
  
• (g) finding Ms HB was not attempting to relitigate the case in which “she was judicially criticised in relation to her professional advice”.
  

Review

[113] Efforts by this Office to encourage the parties to resolve some of the issues raised seem to have failed. Although the parties produced an agreed list of issues to be considered on review, that list does little more than collect together all of Ms HB’s concerns about Ms SW’s conduct towards her and members of the Board under point 2, and repeat Ms SW’s view that the Committee erred in its findings over the reg 42 notice and the defamation letter. Orders that might follow from this decision, including publications, are also referred to.

[114] A review hearing took place in [City A] on [Date]. The parties filed submissions in advance and attended the review hearing. Ms SW was represented by Mr PV QC. She sought leave to withdraw her application for review of the Committee’s decision dismissing her complaints about Ms HB’s conduct.

[115] Serious consideration has been given to granting that request including a positive indication given at the review hearing. Such applications are generally considered on the basis of whether there is any public interest to be served by continuing with the review. However, it has been impossible to properly consider this review without reference to Ms HB’s perceptions, misperceptions and her own part in events. So, although the outcome is to confirm the Committee’s decision that further action is not necessary or appropriate in respect of conduct on the part of Ms HB, Ms SW’s request for leave is declined.

[116] The delay between the review hearing and finalising this decision is regrettable. I apologise to the parties for that.

Nature and scope of review

[117] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:13

... 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.

[118] More recently, the High Court has described a review by this Office in the following way:14

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.

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

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

Discussion

[119] It is clear from the catalogue of complaints and continuing debate that the issues are extensive. A great deal of Ms HB’s complaint is based on her objections to Ms SW’s tactics in the litigation. It is difficult to address those complaints without having to explain what litigation strategy is and how it works. Either Ms HB was attempting to relitigate the processes in which she and Ms SW had been involved for their clients, or she was reliving those processes without a proper understanding of them.

[120] A lack of understanding or disapproval of a lawyer’s tactics does not establish a reliable basis for a complaint that professional standards have been breached. The complaint and review processes under the Act are no substitute for continuing education.

[121] Many of Ms HB’s concerns are minor. One example is Ms SW taking over the seating arrangements in Court. It is not for Committees or this Office to intervene at that level.

[122] Putting aside more minor concerns, the essential elements of the complaints relate to the obligations of respect and courtesy lawyers owe to others, the use of legal processes, threats for improper purposes, and the determinations of unsatisfactory conduct made by the Committee.

Respect and Courtesy

[123] Lawyers are obliged to be respectful and courteous to others and must never mislead the Court. Litigation is always subject to judicial oversight. Lawyers are to be scrupulously honest in the presentation of information and are obliged to be respectful to the Court as its officers.

[124] While legal practice and litigation are not for the faint-hearted, the practice of law is always overlaid by the requirement for separation between counsel and case to promote independence. The practice of law calls for forthright, vigorous exchanges. Robustness is a necessary quality for lawyers.

[125] Feeling bullied (subjectively) is not necessarily the same as being bullied (objectively). Perceptions vary, as does context. It is relevant to note at the outset that Ms HB’s complaint contains a great deal of evidence that suggests she lacked a proper appreciation of, for want of a better phrase, how the litigation game is played. That is consistent with her evidence that although she had been involved in employment mediations before, the dispute between Mr MR and the Board was the first time she had conduct of a matter than was not resolved at mediation.

[126] Ms SW had many years of experience as a lawyer specialising in employment law and employment litigation. Many of the concerns Ms HB raises could equally be viewed as examples of her not understanding Ms SW’s strategy or tactics. While that could well be stressful and humiliating, and might even feel like bullying, it is not evidence of Ms SW’s conduct having fallen below a proper professional standard.

[127] As I understand her case, Ms HB’s point is that Ms SW went too far. Ms SW’s response is that her conduct was within the bounds of propriety in the professional arena. Which position is correct is to be determined on the balance of probabilities with reference to the Act and the rules made under it.

The Act

[128] Section 3 sets out the purposes of the Act which are:

• (a) to maintain public confidence in the provision of legal services...
  
• (b) to protect the consumers of legal services...
  
• (c) to recognise the status of the legal profession...
  

[129] Section 4 sets out the fundamental obligations of lawyers who provide regulated services. It says that every lawyer must, in the course of his or her practice, comply with the following fundamental obligations:

• (a) the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand:
  
• (b) the obligation to be independent in providing regulated services to his or her clients:
  
• (c) the obligation to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients:
  
• (d) the obligation to protect, subject to his or her overriding duties as an officer of the High Court and to his or her duties under any enactment, the interests of his or her clients.
  

[130] Two things are immediately apparent from reading those two foundational sections of the Act. First, nowhere is there express reference to any obligation owed by a lawyer to the lawyer acting for an opposing client in litigation. For that, one must look to rules that are made under the Act. Second, obligations can be abstruse. In the event of ambiguity, according to s 5(1) of the Interpretation Act 1999, meaning must be ascertained from the text of the legislation, and in the light of its purpose.

[131] The text of the Act relevantly continues with ss 7 and 12 which define misconduct and unsatisfactory conduct. They say:

7 Misconduct defined in relation to lawyer and incorporated law firm

(1) In this Act, misconduct, in relation to a lawyer...

(a) means conduct of the lawyer... that occurs at a time when... she... is providing regulated services and is conduct—

• (i) that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable; or
  
• (ii) that consists of a wilful or reckless contravention of any provision of this Act or of any regulations or practice rules made under this Act that apply to the lawyer... or of any other Act relating to the provision of regulated services; or
  

...

(b) includes—

• (i) conduct of the lawyer... that is misconduct under subsection (2) or subsection (3); and
  

...

(3) A person is guilty of misconduct if that person, being a lawyer or an incorporated law firm, shares, with any person other than another lawyer or incorporated law firm, the income from any business involving the provision of regulated services to the public.

...

12 Unsatisfactory conduct defined in relation to lawyers...

In this Act, unsatisfactory conduct, in relation to a lawyer..., means—

(a) conduct of the lawyer... that occurs at a time when... she... is providing regulated services and is conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer; or

(b) conduct of the lawyer... that occurs at a time when... she... is providing regulated services and is conduct that would be regarded by lawyers of good standing as being unacceptable, including—

(i) conduct unbecoming a lawyer...; or

(ii) unprofessional conduct; or

(c) conduct consisting of a contravention of this Act, or of any regulations or practice rules made under this Act that apply to the lawyer..., or of any other Act relating to the provision of regulated services (not being a contravention that amounts to misconduct under section 7);...

[132] Ms SW’s position is that her conduct met or exceeded proper professional standards and therefore does not fall within the definitions in ss 7 or 12.

[133] Ms HB contends that charges should be laid before the Tribunal because there is evidence of misconduct as defined in s 7, on the part of Ms SW.

[134] Although it did not consider Ms SW’s conduct in serving the reg 42 notice contravened any particular rules, the Committee considered that serving it demonstrated a lack of competence and professionalism. Similarly, the Committee considered that sending then withdrawing the defamation letter was a significant error made without taking sufficient care and was conduct that fell short of the standard required by lawyers. In the Committee’s view, Ms SW’s conduct on each occasion fell within the definition of unsatisfactory conduct in s 12(b). The Committee, which is constituted of lawyers of good standing, regarded both aspects of Ms SW’s conduct as unacceptable.

[135] As noted above, the role of an LCRO on review is to reach his or her own view on available evidence. That said, as the Committee exercised a level of a discretion in making its findings, it is appropriate for me to exercise some particular caution before substituting my own judgment without good reason.

The Rules

[136] The Notes about the rules say they “are based on the fundamental obligations of lawyers as set out in s 4 of the Act”. The rules are said not to be “an exhaustive statement of the conduct expected of lawyers”, but they do “set the minimum standards that lawyers must observe and are a reference point for discipline”. The rules “define the bounds within which a lawyer may practise”, but, significantly, only “to the extent appropriate”. The rules provide considerable latitude “within those bounds”, because “each lawyer needs to be guided by his or her own sense of professional responsibility” in each case. The Notes record that the “preservation of the integrity and reputation of the profession is the responsibility of every lawyer”.

[137] Essentially, Ms HB’s position is that Ms SW failed to preserve the integrity and reputation of the profession, and she cites numerous examples of conduct said to fall below the minimum standards that lawyers must observe. Ms HB considers Ms SW’s conduct falls outside the bounds within which any lawyer may practise, she lacks a professional compass and has broken a great many of the rules.

[138] Ms HB refers to r 10.1 which says:

A lawyer must treat other lawyers with respect and courtesy.

[139] Ms HB also refers to rr 2.3, 2.7, 10.2, 12, 13.1, 13.2, 13.3 and 13.9.3 which say:

2.3 A lawyer must use legal processes only for proper purposes. A lawyer must not use, or knowingly assist in using, the law or legal processes for the purpose of causing unnecessary embarrassment, distress, or inconvenience to another person’s reputation, interests or occupation.

2.7 A lawyer must not threaten, expressly or by implication, to make any accusation against a person or to disclose something about any person for any improper purpose.

10.2 A lawyer acting in a matter must not communicate directly with a person whom the lawyer knows is represented by another lawyer in that matter except as authorised in this rule.

12. A lawyer must, when acting in a professional capacity, conduct dealings with others, with integrity, respect, and courtesy.

13.1 A lawyer has an absolute duty of honesty to the court and must not mislead or deceive the court.

13.2 A lawyer must not act in a way that undermines the processes of the court or the dignity of the judiciary.

13.3 Subject to the lawyer’s overriding duty to the court, a lawyer must obtain and follow a client’s instructions on significant decisions in respect of the conduct of litigation. Those instructions should be taken after the client is informed by the lawyer of the nature of the decision to be made and the consequences of them.

13.9.3 A lawyer must not, other than by application to the court, seek to obtain on behalf of a client information or documents that the lawyer knows to be privileged unless every person holding that privilege, after having been advised of the existence of the privilege and consequences of waiver, waives that privilege.

Ms HB’s Review Grounds

The Committee did not adequately consider the complaints of failing to disclose key documents and running the case contrary to those documents

[140] The “key documents” Ms HB refers to seem to be emails Mr MR sent to Ms SW from his work computer. In particular, on [Date] Mr MR told Ms SW he felt his employment was basically over and he would like to exit as soon as possible. Ms HB says Ms SW then ran Mr MR’s case in a manner that was inconsistent with that instruction.

[141] The first point is that people change their minds. Although Mr MR told Ms SW, his trusted confidante, on [Date] that he was ready to leave, he did not give notice to the Board and was in no way bound to leave. Mixed feelings about staying or going are

common and human. Ms HB does not know what Mr MR’s instructions were to Ms SW. The starting point is that those would usually be privileged.

[142] The second point is that the Board was in possession of any emails sent from Mr MR’s work computer. That being the case, there was no need for Mr MR to disclose them. It was not Ms SW’s responsibility to ensure the Board checked its records.

[143] The third point is that it is not for Ms HB or this Office to decide how Ms SW should have run her client’s case. It is not Ms SW’s responsibility to put forward evidence that defeats her client’s case. Clearly the evidence that was before the Employment Court was sufficient to support the proposition advanced by Ms SW that Mr MR dismissal was unjustified. It cannot be assumed that Ms SW did not run Mr MR’s case in general accordance with his instructions when there is no evidence of any dissatisfaction on his part.

[144] There is no basis on which to suppose that the Committee did not adequately consider Ms HB’s complaints that Ms SW did not disclose key documents and ran her case in a way that was not supported by those documents. Deficiency in that regard, if any, is cured by the process of review. Ms HB’s complaints have all been carefully considered in this review process.

[145] Having considered all of the available materials, I have been unable to find evidence or any rationally persuasive support for the proposition that Committee did not adequately consider the complaints of failing to disclose key documents and running the case contrary to those documents. There is no basis on which to modify the Committee’s decision on the basis of this review ground.

The Committee erred in concluding Ms SW’s conduct fell within normal acceptable limits and that the institutions were adequately able to deal with such matters

[146] This aspect of concern to Ms HB captures her dealings with Ms SW from start to finish.

[147] There is an abundance of evidence from Ms HB that she simply could not cope with Ms SW. Ms HB graphically describes her physiological and emotional reactions to situational stress. However, feeling bullied is not the same as being bullied. The first is subjective, the second is objective. Only Ms HB can resolve her feelings.

[148] The complaint Ms HB made is long, broad and pervaded by a misplaced sense of indignation. On that note, there are good reasons for the proposition advanced by Mr

PV that “it is not the role of a disciplinary body to analyse closely and second-guess every move that counsel makes during each piece of litigation”.

[149] In making the findings it did, the Committee identified two incidents, characterised by Ms SW as an error and an act in her client’s interest, as meriting a disciplinary response. Ms SW denies any wrongdoing. Further, she says she too is distressed by allegations that from her perspective are “unwarranted”, “expressions of opinion that are... not supported by the facts”, “expressed emotively”, and that amplify the complaint to an inappropriate level.

[150] Mr PV says that the language used has caused Ms SW the most significant distress. Distress at having a complaint made is not an uncommon reaction among lawyers. It is accepted that Ms SW was distressed by Ms HB’s complaint and vice versa.

[151] Although Ms SW sought leave to withdraw her application for review in respect of the complaint she made about Ms HB’s conduct, Ms HB shares no spirit of reconciliation and is now well entrenched in her position.

[152] Against that background, Ms HB says the Committee erred in concluding Ms SW’s conduct fell within normal acceptable limits and that the institutions were not able to deal adequately with such matters.

[153] The latter is not accepted. Mediators, ERA Members and Employment Court Judges are well qualified and best placed to deal with the behaviours of those who come before them. It is always open to a mediator, Member or Judge to simply suspend the process if behaviours become too extreme. There is no evidence of that having happened, which tends to suggest that Ms SW’s behaviour did fall within the normal acceptable limits expected by the mediators, ERA members and Employment Court Judge. Their silence speaks for itself.

[154] That said, this Office cannot rely on other institutions to do its work and is responsible for making its own inquiries and forming its own views. To the extent possible on the available materials, that has been done.

[155] In many of the cases Ms HB refers to there is no independent evidence either way, and in all cases Ms SW denies any wrongdoing. It is impossible, for example, for this Office to know whether Ms SW called Ms HB useless or a useless lawyer, or said she was not as good as the Board’s previous lawyer. Given the seriousness associated with mediations, it is entirely possible that Ms SW would not have responded kindly to a comment intended by Ms HB to be light-hearted. That does not translate into a professional standards issue.

[156] Being misquoted as Ms HB describes may well be infuriating, but as lawyers routinely restate positions in a way that best serves the interest of their client, misquoting does not translate readily into a professional standards issue.

[157] Ms SW may well have considered the Board’s attempts at mediation were a “sham”. There is nothing wrong with her having expressed that view, just as there is nothing wrong with a lawyer refusing another party access to documents at mediation as Ms HB says Ms SW did.

[158] Interrupting is generally considered rude, and not only by the person interrupted. However, it is so commonplace as to often pass unremarked. Interrupting is certainly not to be encouraged, especially when another lawyer is presenting an opening statement. Likewise, professionals are not encouraged to yell at one another or anyone else. That said, there is no independent support for either allegation and no concern was raised by the mediator who is taken to have been perfectly capable of doing her job.

[159] It is not accepted that Ms SW made it impossible to reach a negotiated settlement. The more likely proposition is that the parties were unable to move past stalemate for reasons completely unrelated to Ms SW’s conduct. It is accepted that Ms SW may have made Ms HB’s job harder, but Mr MR did not retain Ms SW to serve the Board’s interests or Ms HB’s. Ms SW was retained exclusively to represent Mr MR’s interests. If settlement on the terms proposed did not align with those interests it would have been professionally irresponsible for Ms SW to advise Mr MR to settle. Equally, even if Ms SW had recommended settlement, it was entirely Mr MR’s decision whether to accept or not.

[160] Ms HB says that at ERA hearings Ms SW was rude to her, raising unnecessary objections and making the hearing “a horrible experience” for her.

[161] Lawyers make objections at hearings. A degree of robustness is required in response. Objections are a procedural right. Courts and tribunals routinely deal with objections. Some are necessary, some are not; some are upheld, others are not. It is not accepted that in litigation raising objections, even unnecessary ones, is rude. Those are matters for the Court or Tribunal member to deal with and to formally remark upon if appropriate.

[162] Ms HB says that at the JSC Ms SW tried to exclude and undermine her, and did not treat her like a proper lawyer. Ms HB was not alone representing the Board at the JSC. Mr GK was also there. While Ms HB seems to have felt side-lined, she was the instructing solicitor, Mr GK was counsel. If Ms HB had wanted to lead the charge at the

JSC, she and Mr GK should have made that arrangement in advance and proceeded accordingly.

[163] As senior counsel, if Mr GK considered Ms SW was abusing Ms HB one would expect him to have had something to say at the time, and perhaps after. Clearly Ms HB gave Mr GK the opportunity to add weight to her complaint and Mr GK lent what limited support he considered appropriate. The evidence from Mr GK is largely neutral as to his own view of Ms SW’s conduct which tends to suggest he does not wholeheartedly share Ms HB’s concerns.

[164] Ms HB says that at the Employment Court hearing, Ms SW put her down constantly. That is plainly an exaggeration.

[165] Ms HB says Ms SW muttered under her breath but loudly enough for Ms HB to hear “bloody nightmare”. That may be so, but it is not conduct that rises to the point where a disciplinary response is warranted.

[166] Ms HB says Ms SW referred to “[phrase]”. What appears to be one of the results of this aphorism came through in the Employment Court decision at paragraph [39] where the Judge said of correspondence signed off by the Board Chair “I have no doubt that it was, in fact, written by Ms HB”. The general thrust of Ms SW’s argument was that Ms HB had overstepped her role as the Board’s adviser and trespassed on the Board’s role as Mr MR’s employer. The Judge was persuaded. Ms HB was indignant. There was no appeal.

[167] Ms HB turned to the complaint process for redress. If Ms HB’s purpose was, even in part, to demonstrate that Ms SW was wrong about Ms HB’s advice to and interactions with the Board, that is not a proper use of the complaint process under the Act. Any such issues are primarily between Ms HB and the Board. The complaint and disciplinary processes under the Act are not a means for dividing up professional responsibilities between lawyers representing opposing parties in disputes.

[168] As to the deployment of well-placed aphorisms, those can be highly effective in advocacy. Ms SW’s job was to advocate for Mr MR. It seems from the Employment Court decision that her turn of phrase was highly effective in his cause. It is unclear whether Ms HB appreciated the rules that applied if she had been required to give evidence of a contentious nature in the matter, but her evidence suggests she may not have.15 Although it appears to have been excruciating for Ms HB to have her name used in that way, no less so because she was still actively involved as Mr GK’s instructing

15 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rr 13.5.1– 13.5.4.

solicitor and was not on notice that she would be called to give evidence, objectively Ms SW’s use of the term is acceptable.

[169] Ms HB objected to Ms SW having conflated her name with Ms KN’s several times in the course of the hearing. Ms SW says conflating the names was a mistake on her part. While regrettable, slips of the tongue are common enough.

[170] Ms HB and Ms KN clearly shared a close business relationship. Ms KN confirmed in her evidence that Ms HB was an independent lawyer, which I take to mean that they were not sharing income from a business involving the provision of regulated services to the public.16 It is perhaps unfortunate for Ms HB that the way she was advertised on the website begged that question. However, given the apparent proximity of the business relationship between Ms HB and Ms KN was relevant to the case Ms SW was advancing for Mr MR, I am persuaded that Ms SW’s misuse of names probably was a slip of the tongue, albeit several times. It was a long hearing and Ms SW had a great deal to say on Mr MR’s behalf. No standards issue arises.

[171] Ms HB says Ms SW tried to paint her in a dim light. Given the thrust of at least one of her arguments was that Ms HB was instrumental in the unlawful termination of her client’s employment, that is not surprising, nor does it raise a professional standards issue.

[172] Ms HB says Ms SW berated Mr CI, told him that she and Mr GK were the worst lawyers in the world, had done him a disservice, were arrogant and uncooperative. In his affidavit, Mr CI says he found Ms SW’s tone “aggressive and intimidating”.

[173] It is to be borne in mind that, according to Ms SW’s case for Mr MR, along with Ms HB, Mr CI was instrumental in Mr MR unjustified dismissal. It is likely Mr CI, an unpaid voluntary Board member, would have found the whole situation extremely uncomfortable from start to finish. Having one’s conduct scrutinised and one’s evidence vigorously tested in cross examination can be extremely unpleasant experiences. However, as that is part of the role of the opposing lawyer in litigation, no professional standards issue arises for Ms SW on the facts.

[174] Putting to one side the direct communication, reg 42 notice and defamation letter that are discussed below, the last point of significance in Ms HB’s list of complaints is that Ms SW launched into a verbal attack over an adjournment sought by Mr GK. This was towards the end of the Employment Court proceeding. Mr GK sought and was granted the Court’s indulgence to attend to another matter in a different jurisdiction.

16 Lawyers and Conveyancers Act 2006, s 7(3).

[175] There is other evidence that supports Ms HB’s view that Ms SW’s reaction was over the top and dramatic. However, none of the evidence in that regard is sufficient to constitute a professional standards issue.

Direct Communication — Threat for improper purpose

[176] This aspect of Ms HB’s complaint has its genesis in her letter of [Date]. Nowhere in that letter does Ms HB use the conventional form of address used by lawyers in correspondence to “your client”. In the body of the letter Ms HB’s language conflates Ms HB/her firm with her/her firm’s client, the Board. Ms HB’s letter could be read as direct communication or as encouraging Mr MR to communicate directly with Ms HB/her firm, thereby circumventing Ms SW entirely. That would not have been in Mr MR’s interests, nor would it have fallen within any of the limited exceptions to r 10.2 that allow a lawyer to communicate with another lawyer’s client. Ms HB opened the door to criticism.

[177] Given Ms HB’s choice of language, Ms SW’s response made it clear that she was contactable, still representing Mr MR and had not recommended that Mr MR respond directly to Ms HB. Ms SW drew attention to the relevant rule, put Ms HB on notice that her letter of [Date] could serve as a basis on which to allege that a breach of r 10.2 had occurred and told Ms HB very firmly that she was not to communicate directly with Mr MR. Ms SW’s letter is unremarkable.

[178] However, Ms HB took it as a rebuke and describes it as a threat for an improper purpose. Ms HB may well be correct in saying that she did not send the letter directly to Mr MR, but using “your client” would have been the conventional professional form of address. Ms HB’s language gives a reasonably clear signal that she was not as sensitive to her obligation not to communicate directly with Mr MR as she might have been.

[179] Ms SW’s letter could readily be seen as protecting Mr MR’s position while at the same time drawing the attention of a colleague, acknowledged to be less experienced in litigation, to the rules and how they operate in practice.

[180] The allegation that Ms SW’s letter was a threat for an improper purpose is rejected, as is the suggestion that it was an example of bullying.

Other errors by the Committee — referral to the Disciplinary Tribunal, consequential orders and publication

[181] Mr MR’s other concerns relate to perceived errors on the Committee’s part because it did not consider Ms SW’s conduct warranted the laying of charges before the

Disciplinary Tribunal, did not go far enough with the penalties it did impose, and should not have maintained the confidentiality of its decision. Those matters are effectively addressed in what follows.

Ms SW’s Review Grounds — her conduct

The Committee erred by not hearing from her in person

[182] Ms SW considers the Committee erred by not hearing from her in person.

[183] Section 142 relates to the procedure of Standards Committees. It says:

• (1) A Standards Committee must exercise and perform its duties, powers, and functions in a way that is consistent with the rules of natural justice.
  

...

(3) Subject to this Act and to any rules made under this Act, a Standards Committee may regulate its procedure in such manner as it thinks fit.

[184] Regulation 26(6) of the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008 says:

Each Standards Committee must otherwise adopt, as far as practicable, procedures that comply with any practice notes or requirements laid down by the Law Society from time to time.

[185] At 11.4 the Lawyers Complaints Service Procedures Manual issued by NZLS says:

There is a statutory preference for hearings to be conducted entirely on the papers, but the Committee may decide in certain circumstances to hold an oral hearing.

...

In some cases the Committee may need to hear evidence from the complainant or the lawyer or other people...

[186] At its heart, Ms SW’s objection is that if the Committee had listened to her, rather than just reading the papers, she would have been better able to convey her messages. That may be correct, but it is for the Committee to determine its process and hearings are generally on the papers. If it were otherwise, Committees could well be overwhelmed by sheer volume of work.

[187] Ms SW was represented by senior counsel in the latter part of the Committee process and throughout her application for review, including at the review hearing in [City A]. It is difficult to imagine how, in the circumstances, Ms SW might have been denied

the opportunity to add anything salient. It is considered that if there was any problem with the Committee process, that has been cured by the process of review.

The Committee erred by making a determination of unsatisfactory conduct in respect of the reg 42 notice

[188] Ms SW’s position is that the Committee erred in finding that sending the reg 42 notice to Ms KN in error falls within any of the definitions of unsatisfactory conduct in s 12 of the Act. Briefly, those are the public standard of competence and diligence in s 12(a), the lawyer standard in s 12(b) which was the focus of the Committee’s concerns, and contraventions of the Act and its regulations and rules.

[189] Regulation 42 appears in the part of the Employment Court Regulations 2000 that regulates the process of mutual disclosure and inspection of documents. According to reg 37, the object of reg 42 and the regulations that immediately surround it:

is to ensure that, where appropriate, each party to proceedings in the court has access to the relevant documents of the other parties to those proceedings, it being recognised that, while such access is usually necessary for the fair and effective resolution of differences between parties to employment relationships, there are circumstances in which such access is unnecessary or undesirable or both.

[190] Regulation 38 focuses on the importance of relevance in the resolution of proceedings with reference to support for the case of opposing parties and proof of disputed facts. It is clear from what followed that the Employment Court considered that material in Ms KN’s possession that would otherwise have been protected by privilege was indeed relevant to the resolution of the proceedings and assisted in proving a disputed fact. There is a solid support for Ms SW’s contention that materials in Ms KN’s possession should have been disclosed considerably earlier. The problem for Mr MR was navigating arguments about privilege to get to the point of being able to prove a disputed fact, including on the case advanced by Ms SW in his interests, that Ms HB was instrumental in the termination of Mr MR’s employment.

[191] Ms SW accepts she had not joined Ms KN as a party to Mr MR’s proceeding when the reg 42 notice was served on Ms KN. There is no evidence to assist with whether she could have been joined, but the fact is that she was not a party at the time Ms SW served the reg 42 notice. In the circumstances, Ms SW rightly accepted that reg 42 did not apply. That did not stop Ms SW from applying to the Court for a subpoena, which she served on Ms KN, who attended Court and produced documents into evidence that, according to the Employment Court, should have been produced by the Board far earlier because, as a matter of fact, Ms KN had been given document 883 so it was not privileged.

[192] Ms SW was obliged to advance Mr MR’s interests. Not the Board’s and not Ms KN’s. She was not obliged to protect Ms HB at Mr MR’s expense. His interests were, quite properly, her primary concern.

[193] Ms SW knew Ms KN had done work for the Board, and she knew from the website that she and Ms HB were close professionally. It is inconceivable that Ms SW would not want to find out what she could from Ms KN, preferably without drawing her into the proceeding as a party, perhaps unnecessarily. That was Ms SW’s objective. It was legitimate.

[194] It is accepted that counsel should not make procedural errors. The fact is they do. Counsel also has to deal with situations where the other side may have made a procedural error, as counsel for the Board did here by not disclosing evidence over which privilege had been waived. Not every error warrants a disciplinary response. Practice is not perfection.

[195] Much was made of the reg 42 notice in Ms HB’s complaint, submissions and on review, even to the unusual extent of instructing Ms BC to provide an opinion and instructing counsel to argue it was misleading for a lay person. Submissions made by counsel for Ms HB in that regard are unpersuasive for four key reasons. First, the form says to contact the Employment Court Registrar in the event of uncertainty. Second, the form refers to legal privilege which is likely to raise a flag for most people, lay or professional. Third, Ms KN contacted Mr GK on receiving the reg 42 notice, which of itself undermines the proposition that it was or may have been misleading. Fourth, it is difficult to see Ms KN as a lay person when there is evidence available on review that indicates she has a considerable relevant professional background.

[196] There may be circumstances in which the misleading argument might have been persuasive, but it is not persuasive on the present facts.

[197] The fact that the ERA had made a ruling on privilege is irrelevant to the Employment Court proceeding. Arguments over privilege in the Employment Court are for the Employment Court to determine. The hearing was de novo. The Court is not bound by the ERA.

[198] Ms SW is said to have circumvented the Court timetable, which included a deadline for filing any interlocutory application, including any application for non-party disclosure, bypassed “the proper process for obtaining a Court order” and deprived the Board of an opportunity to oppose or be heard. Although perhaps procedurally imperfect, it seems inherently unlikely that failing to adhere to a Court timetable constitutes a standards issue, particularly where the Court has made no criticism. While undesirable,

timetable slippage is commonplace in litigation, and is managed frequently and ably by courts and tribunals.

[199] It is accepted that serving the reg 42 notice bypassed the interlocutory application procedure which meant the Board would not have the opportunity to oppose or be heard. What is missing from this argument is any logical connection between what happened and any impropriety on Ms SW’s part. It was not her job to make sure the Board was given the best chance to oppose her client’s interests.

[200] Counsel generally advise on which process will best achieve the client’s objective, in this case, extracting information from Ms KN, who was a legitimate target of inquiry in the proceeding.

[201] Only Ms SW knows for certain whether she made a mistake in issuing the reg 42 notice. Her evidence that it was a mistake is accepted because that is what she told the Court and Mr MR at the time. If her mistake is problematic, that is primarily a matter for her and the Court, or an issue between her and Mr MR.

[202] Counsel describes Ms SW’s conduct as “calculated, cynical and deliberate”. On the basis that Ms SW made a mistake, those descriptions must be, and are, rejected.

[203] Ms SW is said to have contravened rr 2.3, 13.1, 13.2 and 13.9.3 by serving the reg 42 notice.

[204] Putting Ms HB’s suspicions to one side, there is no cogent evidence that Ms SW acted with an improper purpose, or that she used a legal process for the purpose of causing embarrassment, distress or inconvenience to another person’s reputation, interests or occupation at all.

[205] The Court made no comment about Ms SW having misled, deceived or undermined its processes. There is no suggestion that the dignity of the judiciary was in any way undermined, other than from Ms HB. There is no hint of concern in any of the evidence that Ms SW was anything other than absolutely honest with the Court, other than from Ms HB. The Court was best placed to comment. Its silence is telling.

[206] In submissions made on Ms HB’s behalf, counsel alleges Ms SW contravened r 13.9.3. That rule applies when the lawyer knows information or documents are privileged. Ms SW did not know that materials in Ms KN’s possession were privileged. Privilege can be an area of significant uncertainty. As already mentioned, the view expressed by the ERA was not determinative or binding and was not adopted by the

Employment Court, which found that the “game changer” in Ms KN’s possession was not privileged.

[207] It is not necessary to address all of the submissions that are based on Ms SW having deliberately served the reg 42 notice to obtain documents Mr MR was not entitled to have. Having accepted that Ms SW erred, the proposition that she acted “in stealth” is rejected, as are what counsel describes as “aggravating features” of Ms SW’s conduct.

[208] On Ms KN’s evidence, she was a third party, working for the Board independently of Ms HB. Ms SW was not professionally obliged to draw the attention of the Board’s lawyers to her dealings with Ms KN, or to explain herself to Mr GK. The reg 42 notice was in Form 6. The form explained a number of things to Ms KN including that she could object to disclosing documents for a number of reasons, one of which was if they were subject to legal professional privilege, and that if she, as the recipient, was in any doubt she should contact the Registrar of the court immediately. As mentioned above, it is difficult to see the reg 42 notice as misleading.

[209] Ms KN’s involvement was no secret to either party. There is no subterfuge in the fact that Ms SW did not let Mr GK know she wanted Ms KN to disclose what documents she had. By his own conduct it is apparent Mr GK was aware that if she were to take advice on that issue, it would have to come from someone other than him.

[210] Counsel’s submission that Ms SW’s conduct cannot be construed as unsatisfactory because it was not a “mere slip or oversight” is rejected.

[211] Without the overlay of indignation and suspicion, the evidence simply does not support the assertion that Ms SW should be charged with misconduct. Making a mistake would not reasonably be regarded by lawyers of good standing as disgraceful or dishonourable. Ms SW did not contravene the rules, unlawfully or recklessly. The evidence does not support the contention that her conduct fell short of the standards of integrity, probity or complete trustworthiness expected of lawyers. The public does not need protection against Ms SW even if she did issue a s 42 notice in error without a legal basis.

[212] As well as being a member of the public, Ms KN was an experienced professional in her own right. The submission that Ms SW intended to mislead her is overreaching. While some mistakes may have the effect of subverting a court process, that was not the effect here. That is because, responsibly, Ms SW addressed the issue head on. When Mr GK challenged the reg 42 notice, she acknowledged its deficiency and sought directions. It is difficult to see what more she could have done.

[213] For those reasons I respectfully disagree with the Committee’s view. The determination of unsatisfactory conduct is reversed on the basis that Ms SW’s conduct in serving the reg 42 notice in error does not warrant a disciplinary response.

The Committee erred by making a determination of unsatisfactory conduct in respect of Ms SW sending then withdrawing the defamation letter

[214] Ms SW says that sending then withdrawing the defamation letter should not attract a determination of unsatisfactory conduct.

[215] The Committee says in the decision:

24. The [defamation] letter was sent during a hearing in the Employment Relations Authority (ERA) and was signed by Mr YL on behalf of Mrs SW.
    
25. Ms HB alleged that the letter incorrectly represented Mr MR’s wishes, and that it was intended to inappropriately intimidate [the Board].
    
26. The Standards Committee noted at the outset that Ms SW’s explanation of the circumstances surrounding the sending of the letter had varied considerably throughout the litigation and the complaints process. Ms SW wrote an email to the ERA on [Date] stating that Mr MR had no knowledge of the letter, and an affidavit for Mr MR which recorded that Mr MR did not give instructions to send the letter. On the other hand, Ms SW stated to the Standards Committee that she did have instructions to send the letter, but that she had reached the view that Mr MR may have given the instructions in haste and proceeded to withdraw the letter.
    
27. The Standards Committee was perturbed by these apparent discrepancies. Whilst the Standards Committee noted that Mr MR’s instructions over the letter were unclear, this did not absolve Ms SW of responsibility when sending the letter.
    
28. The Standards Committee was of the view that if Ms SW considered that Mr MR’s instructions were not sufficiently clear, she should not have sent a letter which explicitly stated that she had instructions to commence proceedings. This was especially the case in the context of acrimonious litigation where the letter was likely to be interpreted poorly by the recipients. The Standards Committee considered that an experienced practitioner in Ms SW’s position ought to have sought to clarify their instructions or delay the sending of the letter until the matter could be properly discussed with their client.
    
29. The Standards Committee noted that sending a letter advising of impending defamation action is a provocative step to take, especially during ongoing proceedings. Such a letter would have the potential to cause significant stress to the recipient. Consequently the Standards Committee was of the view that any lawyer, before sending such a letter, ought to take care in ensuring the accuracy of the letter and of the instructions received from their client. Furthermore they ought to ensure that the instructions were properly recorded.
    
30. The Standards Committee considered that Ms SW had erred to a significant degree by failing to take these steps and that her conduct in this regard fell short of the standard required by lawyers.

31. Accordingly the Standards Committee was satisfied that Ms SW’s conduct would be regarded by lawyers of good standing as being unacceptable, and was unsatisfactory conduct for the purposes of s 12(b) of the Act.
    

[216] It is relevant to repeat that Ms SW was acting for Mr MR, on his instructions. The article named Mr MR and was sufficient to provide some basis for concern that his reputation could be damaged. If sending and retracting the defamation letter is an issue, it is primarily an issue between Mr MR and Ms SW, rather than between Ms SW and “the recipient of the letter”.

[217] Like Ms HB’s complaint, the Committee’s concerns focussed on the impact such a letter might have on the recipient of the letter. However, Ms HB gives no consideration in her complaint to the fact that Ms SW primarily owed duties to her client. There is no discussion in the Committee’s decision about the conduct from the perspective of the client. Rather, the Committee adopted the lawyer standard in s 12(b).

[218] There is good reason for this Office to be cautious when a lawyer asks this Office to the reverse a determination of unsatisfactory conduct made pursuant to s 12(b). Each Committee is comprised of lay and lawyer members, all of good standing. Committees form a collective view of whether the conduct that is the subject of complaint is acceptable or not. Those views are not to be taken lightly.

[219] That said, it is for this Office to bring a fresh perspective on review and to form an independent view.

[220] The only real basis Ms HB has for criticising Ms SW’s conduct in sending and retracting the letter is the timing of those events. Aside from responses to questions asked by Mr GK in cross examination, the rest of what Ms HB says about Ms SW’s conduct is supposition.

[221] It is important to recognise that Mr MR has not explained in his own words how those events unfolded from his perspective. The responses he gave to the questions Mr GK asked him in cross examination cannot be characterised as an explanation from Mr MR. Although Ms HB contends that Ms SW sent the defamation letter without having first taken Mr MR’s informed instructions in breach of r 13.3, that contention cannot be properly considered without Mr MR’s evidence.

[222] Mr MR is not obliged to justify himself to Ms HB in the complaint and review process. The article clearly provides some basis for concern on the part of Mr MR about his reputation. As Ms SW tells it, Mr MR instructed her to do something straight away in response to the article. Preferably, whatever she did should be immediately effective. That meant communicating with the Board, through its lawyers, which she did, and

finding out whether Mr QT was acting in his capacity as a Board member, which she also did. Any impact on the Board or Mr QT of sending or retracting the letter are of little relevance, if any. Ms SW did not know and could not find out what she needed to know without communicating with the Board’s lawyers, Ms HB and Mr GK, which she did.

[223] The rules required Ms SW to treat third parties with “integrity, respect and courtesy”. There is nothing in the defamation letter that offends against that rule.

[224] It may be the case that sending the defamation letter would encourage Mr QT and/or the Board to settle Mr MR’s claims against the Board, but it stretches the point to say that was its purpose.

[225] There is no rational or evidential basis on which to infer that the letter was sent to intimidate the Board, as Ms HB contends. It is not accepted that the letter was sent for anything other than proper purposes, which included finding out who might properly be named as a party to defamation proceedings, and complying with r 10.2. Objectively, it cannot be seen as a threat or the use of a legal process for an improper purpose.

[226] In submissions counsel for Ms HB was critical of Ms SW for failing to properly manage or supervise Mr YL, which resulted in him sending the defamation letter, and for encouraging Mr YL in his attempts to threaten and intimidate Mr QT and or the Board. Both criticisms are inextricably linked to the view that there was some impropriety associated with the letter. For the reasons discussed above, that view is not accepted.

[227] Submissions that Ms SW should be charged with misconduct, that her conduct contravened rr 2.3, or 2.7 and that she failed in her obligation to manage and supervise Mr YL are necessarily rejected.

[228] The position advanced for Ms SW is that Mr MR’s interests were at the forefront of her mind at all times. She has explained her conduct and the reasons for it. She was uncertain about where Mr MR’s best interests lay, and it seems he may have been too. Mr MR wanted to pursue two potentially incompatible outcomes, reinstatement and protecting his reputation in response to the article which may or may not have represented the Board’s view.

[229] Assessing where a client’s best interests may lay is an exercise of professional judgement. It is an assessment that can vary from moment to moment depending on a range of factors including how the client weighs and values his or her own interests, the information that is available to the lawyer, how reliable that is, and the lawyer’s perception of the client. The list goes on.

[230] Ms SW says she wanted to be certain where Mr MR’s best interests lay, and that at all times she had his interests at the forefront of her mind. All of that is entirely proper.

[231] It is accepted that Ms SW could have waited until after the hearing to send the defamation letter, but that was not what Mr MR wanted and it would have been inconsistent with taking immediate action. He knew he was applying for reinstatement and no doubt he knew there were risks in responding or not responding to the article. It is not easy to weigh those risks at the best of times and harder still when emotions are running high. However, as Mr MR confirmed, he instructed Ms SW to proactively protect his interests.

[232] As I read the evidence, Mr MR had an idea what Ms SW would say, but left the details to her. She dictated the terms of the defamation letter and to whom it would be directed, but Mr MR did not see the actual letter before it was sent.

[233] Counsel’s submission that sending the letter was justified and reasonable is accepted. Mr MR was concerned about his reputation in the local community and uncertain about the future of his employment. It is also accepted, in the absence of complaint from Mr MR, that sending the letter was consistent with his instructions to Ms SW.

[234] Ms SW then withdrew the defamation letter. That appears consistent with Mr MR’s interests in many ways. Sending the defamation letter put the Board on notice of what Mr QT is reported to have said to the newspaper, registered his concerns about what had been published and disclosed his instructions to Ms SW’s firm, which would otherwise have remained between them.

[235] Sending the defamation letter could not undo any harm publication may have done to Mr MR’s interests. Withdrawing it did not alter the facts, but only reserved his position on whether he would take action or not. If there were to be any harm to anyone’s interests, from Ms SW’s perspective, it could not be to Mr MR’s. So, in the first instance, she accepted responsibility for sending and withdrawing the defamation letter.

[236] The Committee considered Ms SW should have delayed sending the letter until she had confirmed her instructions. But she had instructions. Mr MR had instructed her to do something immediately.

[237] People who are angry and upset are not always in the best state of mind to be urgently making significant decisions about how litigation should be conducted. However, sometimes decisions are made, instructions are given and carried out, and the

pieces have to be picked up later. That should not be taken in any way as a comment that is adverse to Mr MR. It is a view that is supported by inference from the evidence that is available on review, and is a viable explanation for Ms SW’s conduct.

[238] That would mean that Ms SW took responsibility for sending and withdrawing the defamation letter because to have done otherwise may have put her own interests ahead of Mr MR’s. Quite rightly, Ms SW put Mr MR’s interests first.

[239] Without the overlay of indignation and suspicion that characterises the complaint, the explanations provided by Ms SW and the evidence extracted from Mr MR under cross examination is all reconcilable. The only real difficulty is Ms SW’s explanations about why she took responsibility for sending the letter in one forum, and in another, relies on Mr MR having given her instructions. It is to be remembered that Ms SW must protect Mr MR’s confidence unless disclosure is necessary to answer or defend a complaint against her by him. The rules do not permit disclosure of confidential information where a complaint is made by someone other than a client. The complaint and review processes under the Act should not be used by third parties to drive a wedge between lawyer and client.

[240] There can be no real doubt that withdrawing the defamation letter was in Mr MR’s interests. Equally, there can be no real doubt that sending it was both consistent with his instructions and presented risks for his best interests.

[241] It is accepted that the Committee erred by making a determination of unsatisfactory conduct in respect of Ms SW having sent and withdrawn the defamation letter. That determination is reversed.

[242] Further action in respect of Ms SW’s conduct is not necessary or appropriate.

Ms SW’s review grounds — Ms HB’s conduct

[243] Ms SW considered the Committee had erred by in a number of ways. She was affronted by Ms HB’s complaints. Ms SW found the complaint process distressing and believed that Ms HB’s concerns were misplaced. The difficulty Ms SW faces in pursuing her complaint about Ms HB’s conduct is that it seems Ms HB genuinely, if mistakenly, believes she is right. Although Ms HB’s complaint was misconceived, it is not necessarily the case that her purpose was improper.

[244] For the reasons discussed earlier, it is not accepted that the Committee erred in not hearing from Ms SW in person. However, there is a ring of truth to the proposition that ignoring Ms SW’s concerns about Ms HB’s conduct was an error on the part of the

Committee. It is apparent from Ms HB’s complaint that even when the litigation was over, she was struggling to understand what had happened.

[245] If, as Ms SW says, the Committee wrongly implied improper conduct on her part, to the extent possible, that has been cured on review. Nonetheless, Ms SW’s request to withdraw her application for review was a sensible concession.

[246] Litigation practice is complex and relies on robust and competent practitioners. The suggestion that Ms HB might benefit from guidance and counselling in relation to her practice was not without a basis at the time it was made. However, the subject matter of this review has its genesis in events in [Date]. Experience grows over time. It is important to embrace the lessons practice teaches, not resist them.

[247] Ms HB must appreciate that Courts are sometimes critical of the strategy adopted by a lawyer, and of communications that a lawyer has provided in the course of the proceedings. There are many instances of cases where the courts have been stinging in their criticism of the causes of action that have been advocated and promoted by lawyers. Ms HB should understand that, unpleasant as it may be for a lawyer to have the court pass comment which is critical of the representation, this will happen from time to time. This is not the first or last time that a judge will criticise a litigation strategy promoted by a particular lawyer.

[248] It is not difficult to understand Ms SW’s reaction to Ms HB’s concerns and the way she advanced them. However, on balance, there is nothing to be gained from taking further action, particularly as there is no public interest to be protected and further action is not what Ms SW, the complainant, now wants. On that basis, the Committee’s decision that further action in respect of Ms HB’s conduct is not necessary or appropriate is confirmed.

Summary

[249] The two findings of unsatisfactory conduct made against Ms SW are reversed, and without a statutory basis the orders made pursuant to s 156 fall away.

[250] The decision that further action is not necessary or appropriate in relation to Ms HB’s conduct is confirmed.

Costs

[251] A LCRO has a discretion to order costs pursuant to s 210 of the Act and the LCRO’s Costs Orders Guidelines.

[252] Ms SW has been successful on review. There is no basis on which to order her to pay costs.

[253] Consideration has been given to ordering Ms HB to pay costs on review on the basis that Ms SW’s complaint was justified even though no finding of unsatisfactory conduct has been made in respect of Ms HB’s conduct. Ms HB’s conduct in the course of this review process seems to be based on a number of misconceptions. On balance, the preferred approach is to avoid the perception that a costs order is being used to punish Ms HB.

[254] No costs orders are made on review.

Publication

[255] Although the process of review is private pursuant to s 206(1) of the Act, the LCRO may direct publication of decisions as the LCRO considers necessary or desirable in the public interest.

[256] Ms HB seeks a direction that allows her to show this decision to the Board.

[257] Ms HB has not explained why she seeks that direction. It is assumed members of the Board will have moved on. At least one has passed away.

[258] Ms HB’s request is declined.

[259] There is no public interest to be served by publication.

[260] Both lawyers’ privacy is to be respected.

[261] Publication of this decision is directed pursuant to s 206(4) with all identifying features removed.

Decision

[262] Pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006 the two determinations of unsatisfactory conduct made against Ms SW are reversed.

[263] Pursuant to s 211(1)(b) and 138(2) of the Lawyers and Conveyancers Act 2006 further action in respect of Ms SW’s conduct is not necessary or appropriate.

[264] Pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006 the determination that further action in respect of Ms HB’s conduct is not necessary or desirable is confirmed.

[265] Pursuant to s 206(4) of the Lawyers and Conveyancers Act 2006 publication of this decision with all identifying features removed is directed.

DATED this 31st 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:

Ms SW as the Applicant and Respondent Ms HB as the Respondent and Applicant

Mr PV QC as the Applicant and Respondent’s Representative [Area] Standards Committee

The New Zealand Law Society