A1 v B2 [2018] NZLCRO 122 (26 November 2018)

Last Updated: 2 December 2018

	LCRO 137/2018
CONCERNING	an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING	a determination of the [City] Standards Committee [Z]
BETWEEN	A1 Applicant
AND	B2 Respondent

DECISION

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

Introduction

[1] Ms A1 has applied for a review of a decision by the [City] Standards Committee [Z] (the Committee) to take no further action in respect of her complaint concerning conduct on the part of Ms B2.

Background

[2] Ms A1 and Mr JB are K’s parents. They separated and both formed subsequent relationships. Although the Family Court allowed Mr JB unsupervised overnight contact, Ms A1 continued to care for K and Mr JB felt himself excluded. Mr JB challenged Ms A1 through the Family Court, seeking to extend his involvement in K’s upbringing. The Court appointed a lawyer for K.

[3] Ms A1, who was represented by lawyers, latterly Ms LL, objected to the involvement of both lawyers, Ms B2 and K’s, and made complaints to the New Zealand Law Society (NZLS) about both of them. The review relates only to Ms B2.

Complaint

[4] In her complaint dated 23 April 2018 Ms A1 says that over the five years of their involvement, Ms B2 (at times in conjunction with K’s lawyer):

• (a) acted extremely unjustly and contrary to law;
  
• (b) was biased;
  
• (c) forced K into a situation that was detrimental to her wellbeing; and
  
• (d) put her and K under immense stress and trauma.
  

[5] Ms A1 says Ms B2 should be banned from acting for Mr JB in future because they were “friends from school”, she “has a personal interest in the case and has a personal vendetta against” Ms A1 “which causes her to act beyond what is legally and morally right”.

[6] Ms A1 wants both lawyers held to account “for their misconduct”.

[7] The Committee dealt with the issues Ms A1 had raised without Ms B2 exercising her right to respond. The Committee concluded, on the basis of no evidence from Ms B2, that she was a close friend of Mr JB and his family. It explained why the rules around conflict of interest were not engaged by the facts, that there is no rule that prevents lawyers from acting for friends and that Ms B2’s obligations were owed to Mr JB, not Ms A1.

[8] The Committee considered r 12 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, which sets out the duty on lawyers to conduct dealings with others with integrity, respect and courtesy, and concluded that the evidence did not disclose any failing in that regard on Ms B2’s part.

[9] The Committee determined Ms A1’s complaint pursuant to s 138(2) of the Lawyers and Conveyancers Act 2006 (the Act) on the basis that further action was not necessary or appropriate.

[10] Ms A1 disagrees and applied for a review.

Application for review

[11] Ms A1 says in her application for review that the Committee had not addressed parts of her complaint, and repeated that she wanted Ms B2 prohibited from

acting for Mr JB in any future Family Court matter involving Ms A1. Ms A1 refers again to “immense trauma” and seeks an apology from Ms B2.

[12] Ms A1 says:

• (a) She referred to:
  
  • (i) r 2.7 in her complaint, but her allegation that Ms B2 had contravened that rule has not been addressed. Ms A1 says it is clear from the evidence, contained in an email dated 11 December 2017, that Ms B2 threatened her; and
    
  • (ii) Ms B2’s early involvement in attempting to “trick” her into attending a meeting with Mr JB without disclosing her role was that of his lawyer but her allegation was not addressed.
    
• (b) Ms B2:
  
  • (i) lacks independence (described by Ms A1 in terms of a close personal friendship/personal vendetta/acting on her own emotions/personal attacks on Ms A1) because she is too close a friend of Mr JB and his family;
    
  • (ii) failed to take instructions from Mr JB and act accordingly;
    
  • (iii) used “rude, bullying, threatening and unprofessional tactics”; and
    
  • (iv) did not conduct her dealings with Ms A1 with integrity, respect and courtesy.
    

[13] Ms A1’s relationship with Mr JB remains difficult, she considers Ms B2’s involvement makes that worse but she does not want to have to resort to the Family Court to ensure K is protected “from harm and abuse”.

[14] Ms B2 provided a response on review. She says she acted on Mr JB’s instructions in 2012 and 2017, and denies any professional wrongdoing or personal vendetta in respect of Ms A1. Ms B2 says Ms A1 refused to comply with parenting orders made in 2012 and Mr JB was entitled to the view that he should have contact with K, albeit without Ms A1’s support.

Review on the papers

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

Nature and scope of review

[16] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:1

... 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.

[17] More recently, the High Court has described a review by this Office in the following way:2

A review by the LCRO is neither a judicial review nor an appeal. Those seeking a review of a Committee determination are entitled to a review based on the LCRO’s own opinion rather than on deference to the view of the Committee. A review by the LCRO is informal, inquisitorial and robust. It involves the LCRO coming to his or her own view of the fairness of the substance and process of a Committee’s determination.

Discussion

Rule 2.7 — Threat for an improper purpose

[18] Rule 2.7 says:

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

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

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.

[19] Ms A1 says she raised the allegation that Ms B2 had contravened r 2.7 in her complaint and the Committee did not address it. Ms A1 relies on an email from Ms B2 to Ms LL, copied to K’s lawyer, dated 11 December 2017. Ms B2 says in that email:

I refer to my memorandum filed this morning.

I invite you to withdraw your memorandum on the basis of the considerable evidence contained within that should properly be in affidavit form.

It is clear that this matter will require hearing time. If your client is going to rely on evidence in 2012, my client will attach photographic evidence of your client highly intoxicated and using kronic. He would prefer not to go down this route and instead concentrate on moving forward and that is up to your client.

In terms of Porse and Kindy there is no agreement that clause is retrospective. It does not read that way. Please confirm when in the next month [K] is enrolled to attend Porse and Kindy and I will take further instructions.

[20] Context is important. The email of 11 December 2017 was written after the parties had reached a level of agreement on some issues and had recorded that. However, K’s welfare and best interests remained subject to the jurisdiction of the Family Court. It appears from submissions filed by Ms LL dated 7 December 2017 that the unresolved issue from Ms A1’s perspective was Mr JB’s drinking and how K would be protected from the consequences of that if she were to be in Mr JB’s care. Mr JB’s position to the contrary is apparent from Ms B2’s email.

[21] Ms A1’s instructions to Ms LL in 2017, conveyed in the submissions Ms LL filed, were that Mr JB had “a very serious drinking problem which he continues to deny”. Ms A1’s views on Mr JB’s drinking had been formed in 2012 and, despite a Family Court inquiry into K’s welfare at the time resulting in Mr JB being allowed unsupervised overnight contact, Ms A1’s concerns did not abate. Ms A1 repeatedly mentions the fact that Mr JB has done nothing to satisfy her that he had completed relevant programmes or moderated his consumption of alcohol.

[22] In her email of 11 December 2017, Ms LL communicated Ms A1’s instructions that Mr JB should contribute towards the historical costs of K’s kindy and childcare. It can be inferred from Ms B2’s reply that her instructions at that stage were that Mr JB had no intention of paying for choices Ms A1 had made for K without his input. Importantly, however, Ms B2 said she would seek his instructions. That was appropriate because although the Family Court matters had not been disposed of, the spirit of reconciliation is to be encouraged, and instructions can change.

[23] Ms B2 invited Ms LL to withdraw the memorandum she had filed on the basis that it contained “considerable evidence” that she may have had cause to test at a hearing. The position advanced by Ms B2 was that the evidence should be put before the Court in a way that enabled it to be tested. It could not be assumed that Mr JB accepted the contents of Ms LL’s submissions.

[24] Evidence should not to be conflated with findings of fact. Counsel should be cautious about relying on untested evidence in memoranda when no finding of fact has been made. As Ms B2 indicated, from Mr JB’s perspective, the matter was going to require hearing time to air and test the evidence, so the Court could make an informed decision.

[25] What seems to have offended Ms A1 most about the photographic evidence Mr JB said he had was that it would have undermined Ms A1’s case that she was the better parent.

[26] It would have been to neither parent’s advantage to be perceived by the Court as a drug or alcohol user. Clearly, Mr JB was not willing to leave it to Ms A1 to tell the Court how they had lived their lives in 2012. However, Courts should not be misled. If Ms A1 wanted to open up that line of inquiry, she had to accept the consequences, one of which, as Ms B2 told her, was that her own conduct in 2012 would be the subject of evidence.

[27] Ms B2 put the choice in front of Ms A1: let the past go and focus on the future, or face the prospect of her own behaviour being scrutinised alongside that of Mr JB. In either case, the purpose was to enable the Court to decide where K’s welfare and best interests lay. That is a legitimate purpose. The only question was the scope of the evidence that would be adduced at hearing.

[28] It is accepted that Ms A1 found the prospect of her past behaviour being scrutinised an unwelcome prospect. That is not the same as Ms B2 threatening or bullying Ms A1. Ms B2 advised Ms A1, through her lawyer, what the consequences of her choices would be. There was no attempt to bend Ms A1 to Ms B2’s will, or to Mr JB’s. The purpose of disclosing that photographic evidence existed was to forewarn Ms A1 that Mr JB had potentially relevant evidence that he could place before the Court. The fact that the evidence may have undermined or balanced out Ms A1’s evidence of events in 2012 is irrelevant. Forewarning a party of consequences in an

attempt to ascertain the scope of the evidence that would be required for a hearing was a legitimate purpose.

Ms B2’s early involvement — attempting to “trick” Ms A1 into attending a meeting with Mr JB without disclosing her role was that of his lawyer

[29] Ms A1 says the Committee did not address this allegation. Ms B2 says there is nothing to it.

[30] In her complaint Ms A1 said that Mr JB and his mother told her that they wanted to have a meeting and that “they were going to bring along their friend Ms B2”, but “what they did not tell [Ms A1] was that [Ms] B2 was actually [Mr JB’s] lawyer”. Ms A1 says Ms B2 encouraged Mr JB and his mother to trick her into meeting and Ms B2 deliberately withheld that information from her.

[31] The first point is that, on Ms A1’s evidence alone, Ms B2 did not arrange the meeting, Mr JB and his mother did. Ms B2 cannot be held to account for anything Mr JB or his mother may have said to Ms A1 before the meeting.

[32] The second point is that Ms A1 has no way of knowing what, if anything, Ms B2 said to Mr JB, his mother, or what they said to her. Suspicion and speculation about what might have occurred between them is not evidence of conduct on Ms B2’s part for which she should be held to account.

Ms B2’s independence

[33] Ms A1 describes the relationship between Mr JB, his family and Ms B2 as a close personal friendship. She contends that has resulted in Ms B2 losing perspective, acting on her own emotions rather than on Mr JB’s instructions, mounting a personal vendetta, and launching personal attacks on Ms A1.

[34] The Committee, on the basis of no evidence from Ms B2, accepted Mr JB and his family were close friends of Ms B2.

[35] Ms B2 says she and Mr JB “are not close personal friends”.

[36] There is no prohibition in the rules against acting for friends, even close personal ones. What must be avoided as between lawyer and client, as Ms A1’s lawyer told her in an email dated 16 August 2017, is intimate personal relationships. There is no evidence that Mr JB was in any such relationship with Ms B2.

[37] At the heart of Ms A1’s concern is the fact that Ms B2 and K’s lawyer did not progress matters in a way that accorded with Ms A1’s perception of where K’s best interests lay. The materials available on review indicate that Ms A1 preferred Mr JB have no involvement with K at all.

[38] The evidence discloses numerous examples of Ms B2 acting in accordance with what can be seen of Mr JB’s instructions. It appears from the position Mr JB took in the Family Court litigation that, as K’s father, he wanted to be more involved in her upbringing. Everything Ms B2 did is consistent with furthering that overarching objective. That was her job. It must be assumed those were her instructions.

[39] Ms A1’s complaint is inextricably bound up with her view that she knows best where K’s interests lay. However, if parents cannot agree what is best for the welfare of their child, and what is in their child’s best interests, those can become issues for the Family Court to decide.

[40] Ms A1 speculates about, but has no way of knowing, what exchanges occurred between Mr JB and Ms B2, which constrains her ability to demonstrate a lack of independence on Ms B2’s part. There is no evidence of Ms B2 lacking independence in any of her professional dealings. A lawyer cannot be criticised for exercising independent professional judgement on behalf of a client or for exercising professional judgement solely for the benefit of the lawyer’s client.

Failed to take instructions from Mr JB and act accordingly

[41] There is no evidence that supports the proposition that Ms B2 failed to take instructions from Mr JB or that she acted in a way that may have been inconsistent with his instructions. That is not a complaint Ms A1 is well placed to make, and Ms B2 says Mr JB has never raised any concerns over her work or advocacy for him.

Used “rude, bullying, threatening and unprofessional tactics”

[42] There is no evidence that supports the proposition that Ms B2 was rude, bullying, threatening or unprofessional in her tactics.

Did not conduct her dealings with Ms A1 with integrity, respect and courtesy.

[43] Ms B2 acted for Mr JB in respect of a contentious matter. Within that context there is no evidence that supports the proposition that Ms B2 failed to conduct her

dealings with Ms A1 with integrity, respect or courtesy. Ms A1 was represented. Her lawyer was well placed to address any such issues and can reasonably be expected to have done so.

Ms A1’s relationship with Mr JB remains difficult, she considers Ms B2’s involvement makes that worse but she does not want to have to resort to the Family Court to ensure K is protected “from harm and abuse”

[44] Ms A1 and Mr JB share a child. Ms B2 is not responsible for the future of their relationship as parents, they are. If Ms A1 is unable to accept that K’s welfare and best interests are being protected “from harm and abuse”, although there are other ways, application to the Family Court is one method by which she can seek to have her concerns addressed.

Prohibition on acting

[45] Ms A1 wants this Office to prohibit Ms B2 from acting for Mr JB.

[46] Mr JB has a right to choose who he instructs as counsel. It is far from clear that this Office has any power to interfere with that important and significant right. In any event, Ms A1’s complaint and application for review establish no basis on which to do so.

Summary

[47] Although this decision makes little reference to the Committee’s reasoning, that is because some of the concerns Ms A1 raises on review are specific criticisms of the Committee’s decision. The balance of Ms A1’s concerns reiterate her complaint. Careful consideration of all of the materials available on review provides no basis on which to modify or reverse the Committee’s decision. That is confirmed.

Decision

Pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006 the decision of the Standards Committee is confirmed.

DATED this 26TH day of November 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 A1 as the Applicant Ms B2 as the Respondent

[City] Standards Committee [Z] New Zealand Law Society