RG v XP [2018] NZLCRO 129 (4 December 2018)

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	LCRO 124/2017
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 [X]
BETWEEN	RG Applicant
AND	XP _Respondent

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

[1] Mrs RG has applied for a review of a decision by the [City] Standards Committee [X] (the Committee) which concluded that there had been unsatisfactory conduct on her part.

[2] On instructions from Ms AV, Mrs RG acted for Ms XP and her mother Ms SK. [3] Mr XP was represented by Mr HK on instructions from Ms SL.

[4] Mrs RG wrote to Mr XP’S lawyers in May 2016 setting out her client’s position, suggesting mediation and asking for any injunction application by Mr XP to be on notice.

[5] Three months later Mr XP’S lawyers applied without notice for an interim injunction to freeze funds under Ms XP’S control. The Memorandum Ms SL filed in

support of that application included references to the supporting evidence, and the following:

55. [Mr XP] is aware [Ms XP] has solicitors, and counsel who have entered an appearance on the extant application to sustain a notice of claim on the property at [Address 1].

56. In limited communication from the lawyers for the second respondent they have asserted on her behalf that the date of separation was sometime back in 2010. They have also asserted that there is a third party investor with the second respondent in the [Area] property. However, that said, that is not borne out by the entry in the bank statement where it would appear [Ms XP] is paying the whole of the mortgage.

[6] Having considered the evidence and the grounds set out in the application, the

[7] The sudden and apparently unexpected effect of the injunction on Ms XP led her to seek legal advice. She instructed her lawyers to apply to discharge the interim injunction. Ms AV prepared the documents. Affidavits were sworn and Mrs RG signed a Memorandum which set out the history of the XP proceedings, the applicable principles and arguments in support of the proposition that the injunctive relief Mr XP had secured should be set aside (the Memorandum). The Memorandum advanced the proposition that Mr XP had knowingly failed to provide the full and frank disclosure required of an applicant for ex parte interim injunctive relief because:

23. First, Mr XP failed to disclose that Ms XP has engaged senior counsel to act in this matter. Mr XP has known that Ms XP is represented by RG QC since at least [date] May 2016 when RG wrote to Mr XP lawyer (the [date] May letter)...

24. Mr XP is also aware from the notice of claim proceedings and correspondence between the parties’ lawyers that RG is acting for Ms XP.

25. Secondly, and critical to this matter, Mr XP failed to disclose that there is a dispute between the parties as to their separation date. Ms XP says that the parties separated in July 2008. However, Mr XP has claimed in his affidavit dated [date] August 2016 that the parties separated on [date] December 2015.

26. Mr XP was aware of this dispute at the time that he filed his without notice application. In the [date] May 2016 Letter to Mr XP counsel, it is made clear that there is a dispute over the separation date. Counsel for Ms XP not only sets out Ms XP position as to what she considered the separation date, but noted that “I understand your client claims a much later separation date.”

27. In any event, as a barrister himself, Mr XP must have been aware that Ms XP had a different view as to the separation date due to the conversations between the parties and Ms XP actions and behaviour towards Mr XP. As set out in Ms XP affidavits sworn [date] August 2016 and [date] August

2016, the parties have been physically and emotionally separated since July 2008 and financially separated since at least September 2010. Ms XP has been treating her property as separate property since that time and Mr XP must have been aware of that.

28. In these circumstances, Mr XP cannot have any doubt that there was a dispute as to separation date. However, this was not disclosed in the without notice application nor in his affidavit dated [date] August 2016 where Mr XP simply states that “...we separated on [date] December 2015” (at paragraph [2]).

[8] Mrs RG submitted Mr XP non-disclosure had the effect of misleading the Court, describing it as a “flagrant breach of the rules” and arguing that for various reasons the interim injunction should be discharged.

[9] Mrs RG’S Memorandum makes no reference to paragraphs 55 or 56 of the Memorandum filed on Mr XP’S behalf, where reference is made to Ms XP’S lawyers’ assertion that the date of separation was sometime in 2010.

[10] Mrs RG’S application to set aside the freezing orders was considered by the same Family Court Judge who had granted injunctions only days earlier. The Family Court unfroze Ms XP’S funds on [date] August 2016, by way of a Direction that included the following comments by His Honour:

2. When I dealt with this matter on [date] August I obtained the parties’ Property (Relationships) Act 1976 file because the out of town duty Judge was concerned that it was more appropriate that a local Judge deal with this matter with the full file.

3. The file included the husband’s interlocutory application to extend a notice of claim in respect of real estate property. The wife had filed a notice of defence with the promise to file her evidence by [date] August.

4. Following inquiries with the registry I was informed the wife had not filed any affidavits regarding the notice of claim action. I now know this information to have been unreliable. A date stamp on correspondence from counsel for the wife addressed to the Court clearly shows the affidavits were filed on [date] August but not entered into the Court management system until after I began dealing with this matter on [date] August.

5. If I had those affidavits before me on [date] August I would not have granted the injunction.

6. It is clear from the wife’s evidence that she has previously disputed the purported date of separation. It is alleged by the wife that the parties separated in 2008 and not on [date] December 2015 as deposed by the husband. There are other significant areas of dispute between the parties which would have been important for me to know when I was deciding whether or not to issue an injunction.

7. Having regard to the above matters I believe the interests of justice require that the injunction is discharged but that all other orders and directions remain in place. This means there will still be a half day submissions only hearing to determine whether the notices of claim will be extended and whether an injunction should issue.

[I interpolate here it is apparent the Family Court registrar and the Judge did not read (or did not perhaps have the opportunity to read) any of the material already on the file and from Mr XP. They appear to have taken the content of Mrs RG’S material at face value as true and correct. The fact this occurred is not otherwise presently relevant).

[12] Mr HK says the Court knew Ms XP had instructed Mrs RG from her Memorandum filed in Court dated [date] July 2016, and from paragraph 87 of Mr XP’s affidavit evidence.

[13] On [date] August 2016 Ms SL and Mr HK filed a Memorandum. The Memorandum made no reference to most of the matters of record in His Honour’s Directions, but focussed instead on advancing the proposition that:

2. The basic legal point on which the application to discharge was made was that the applicant failed to inform the Court of the fact the respondent(s) had legal representation and that the date of separation was in dispute. We were extremely surprised to have read these grounds.

disputed date of separation is not a factual matter that can be determined on interlocutory applications, but a threshold issue for determination only at trial.

basic legal point on which the interim injunction has been set aside is fundamentally flawed; in fact, the applicant did make disclosure.

[15] The incongruity between possible dates of separation proposed by Ms XP was mentioned and is described by Mr XP’S lawyers as odd. They dismiss matters placed on record by Mrs RG in earlier correspondence as having no evidential value and thus not worthy of mention in Mr XP’S application for injunctive relief. Ms XP’S interest in the [Area] property is treated as unconnected to the application to freeze funds. It is argued that making application ex parte or on short notice was appropriate, and that Mr XP made relevant disclosure. Mr XP’S lawyers asked the Court to allocate a priority hearing date to determine whether freezing orders should be made on notice.

about Mrs RG lying to the Family Court, and also preparing material the content of which she knew to be false

[17] Mr HK set out the background to Mr XP’S complaint, and the lying and misleading allegations in a six-page letter with attachments that included counsels’ Memoranda and various other documents. The nub of the complaint is that:

The material Mrs RG filed is false; she has not only misled the Court but, in fact, lied to the Court. She said:

(a) Mr XP did not tell the Court lawyers were acting for the wife and that, specifically, that it was her; and

(b) That the Court was not informed that the date of separation between husband and wife was contested.

[18] Reference is made to paragraph 87 of Mr XP’S affidavit and paragraphs 55 and

56 of the Memorandum filed by counsel in support of Mr XP’S application for freezing orders. It is said the Court knew Mrs RG was acting and all the documents relating to the application for freezing orders had been served on Mrs RG before she made the application to set aside. It is noted that Mr HK responsibly acknowledged shortly afterwards that part of his letter was “in error”, because he did not have reliable evidence of when service was effected on Mrs RG.

[19] Mr HK referred to the Memorandum he and Ms SL had filed dated [date] August

the incident of lying by Mrs RG is a stand alone event, isolated entirely from the

Given the passage of time that has followed not only these events, but also delivery of the memorandum of August [date], 2016 from the applicant, and the silence that has followed from Mrs RG, it is clear she has lied to the Court. The lie is in writing; nothing could be plainer.

The opportunity to explain away the lie and down grade it to an error, or mistake, has well past... three weeks later...it would stretch the credulity of any right thinking person to accept a statement now from her to the effect she made a mistake, or an error.

[20] Mrs RG replied on [date] October 2016. The general tenor is that no professional standards issue arises and any issues that do arise should be dealt with by the Family Court.

[21] Mrs RG set out context for the complaint, including that it was made in the course of “an extremely acrimonious relationship property dispute” which was far from resolved.

[22] Mrs RG accepted she had “inadvertently overlooked” some of the aspects of non-disclosure complained of by Ms XP’S, her oversight was not deliberate, the references she had overlooked “were relatively obscure” and were also overlooked by her instructing solicitors.

[23] Mrs RG offers various justifications for her conduct including Mr XP’S minimisation of Ms XP’S counsel, and the emphasis in his application on the separation date he contended for, and what he stood to lose if the date of separation was earlier.

[24] Mrs RG refers to her instructions from Ms XP to the effect that all the concerns Mr XP had raised were baseless and her suspicion that his application was “purely tactical”. In all the circumstances Mrs RG describes, including “real time pressure”, Mrs RG says it was understandable that the final paragraphs of the memorandum could be overlooked.

[25] Mrs RG refers to His Honour’s directions discharging the injunction, and the affidavits he referred to that he had not seen when he made injunctive orders. She remains of the view that Mr XP’S application did not meet the requirements for full disclosure in ex parte applications.

[26] Mrs RG considers no reply to counsels’ memorandum of [date] August 2016 was necessary or required, largely because the Court had set down a hearing date to determine whether to issue an injunction and the Court could deal with the issues at that time. Further, Ms SL sent Mrs RG a letter, also on [date] August 2016, focussing on resolution through mediation of some issues. Mrs RG’s response was that Ms XP would attend a mediation, but only if it dealt with all issues. Mrs RG says she was not aware there was an issue with her failure to respond to the issues raised in the memorandum of [date] August 2016 and considered it unnecessary to file a memorandum incurring further cost.

[27] The parties provided further submissions in response to the Committee’s Notice of Hearing identifying potential contraventions of rr 2, 2.1, 11, 13 and 13.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules). Mrs RG instructed counsel. Arguments were traversed in submissions, authorities and excerpts from leading texts provided, and the Committee considered all of those materials in advance of delivering its decision.

[28] Mr HK advanced the position that Mrs RG had lied to the Family Court, had presented information that was misleading and may have been:

recklessly indifferent to the truth of the contents of the material that she wrote and delivered to the court with the intention and knowing it would be relied on by a Judge.

[29] He alleges a range between a lie and “reckless indifference” and says it is apparent that Mrs RG did not in fact read all of Mr XP’s material “contrary to the plain implication she had, she knew that, but was prepared to mislead the Court”, then did nothing to rectify the position. Mr HK, on behalf of Mr XP, expresses “no doubt this is misconduct”.

[30] Submissions for Mrs RG maintain her oversight was inadvertent, she failed to notice the references, and did not act deliberately, intentionally, knowingly or recklessly. Mrs RG says her conduct was not misleading in the context of the application. Any conflict of duties between her client and the Court is denied, as are bad faith, moral lapse and other impure motives. It is argued that Mrs RG’s conduct does not contravene any of the rules referred to by the Committee, and does not fall well below a proper professional standard. Misconduct is denied. Further action is said to be unnecessary and inappropriate.

[31] If that is not accepted, counsel submits either no unsatisfactory conduct finding should be made, or if a finding is made, that no orders should be made. If, however, orders are to be made, it is submitted a fine would be excessive but an apology to Mr XP may be appropriate. It is contended that while it may be in the public interest to publish a decision, there is no public interest in identifying Mrs RG as its subject.

[32] The Committee set out the background, including at paragraph 13 the material Mr HK had acknowledged was erroneous as to when materials were served on Mrs RG. The Committee noted Mrs RG’s acknowledgement of her own error, her recognition that her Memorandum was inadvertently inaccurate and her denials of deliberate, intentional, knowing or reckless conduct. It noted Mrs RG’s submission that the Court was not misled or deceived by the Memorandum.

[33] The Committee did not accept that Mr XP, through Mr HK, had made the complaint for strategic purposes. References to rr 11 and 11.1 in the complaint were dismissed as irrelevant and erroneous. The Committee reasoned its way to a determination of unsatisfactory conduct in the following way:

(a) Mr XP’s application and associated documents contained the correct information at paragraphs 87, 55 and 56;

(d) Mrs RG’s conduct was inadvertent, an honest mistake, and she had simply overlooked the references in Mr XP’s documents;

(e) Mrs RG’s conduct was regrettable and avoidable, she should have considered the documents more carefully;

(g) however, r 3, which had not previously been mentioned, obliges lawyers to act competently, consistent with the terms of the retainer and the duty to take reasonable care:

especially in respect of ex parte applications since the Court does not have the benefit of hearing from the respondent. The Court is therefore necessarily reliant on counsel for the applicant to provide full frank and accurate disclosure of the material facts.

(h) Mrs RG had failed to discharge her obligation to act competently and consistently with the duty to take reasonable care;

(i) Mrs RG’s conduct, in contravention of r 3, fell within the definition of unsatisfactory conduct in s 12(c) of the Act;

(j) Mrs RG’s conduct also fell short of the standards of competence and diligence a member of the public is entitled to expect of a reasonably competent lawyer, and therefore fell within the definition of unsatisfactory conduct in s 12(a) of the Act;

(k) the Committee considered Mrs RG should have filed a memorandum “as soon as reasonably practicable advising [the Court] of her mistake and setting out the correct position” rather than leaving it until 15 November to file a memorandum acknowledging her mistake; and

(l) the Committee considered the delay was either an aggravating factor or a contravention of r 13 falling within the definition of unsatisfactory conduct pursuant to s 12(c).

[34] Having concluded that there had been unsatisfactory conduct on the part of Mrs RG pursuant to ss 12(a) and (c) of the Act, the Committee imposed a fine of $5,000, costs of $1,000 and ordered publication of a summary of its decision with identifying features removed.

(a) erred by applying r 3, which is a lawyer/client standard, less than sensibly and fairly;

(b) breached natural justice by failing to advise Mrs RG that r 3 would be relevant to its inquiry;

(iv) the errors Mrs RG made had no detrimental consequences for any party and were immaterial to the Family Court’s decision to discharge the orders;

(v) the Court was aware of the correct position from counsel’s [date] August 2016 memorandum;1

(vi) Mrs RG confirmed the correct position and apologised to the Court and Mr XP in the course of advancing the proceeding and filing additional court documents;

(vii) between August and November the parties discussed resolving their differences through alternate dispute resolution; and

(d) Mr XP’s expectations are irrelevant because he is not a “member of the public” for the purpose of s 12(a).

[37] It is submitted that the penalty was excessive and disproportionate to the impugned conduct, and the Committee’s decision should not be published in a manner that identifies Mrs RG. It is said Mr XP breached the Committee’s confidentiality order by identifying Mrs RG as the subject of an adverse conduct finding in open Court. Mrs RG prefers privacy.

[38] In addition to the materials that were before the Committee, Mrs RG filed affidavits from Ms AV and her client as well as an affidavit sworn by Mr XP on [date] August 2016 in support of his injunction application.

[39] The further materials are advanced on the basis that Mrs RG had no way of knowing her obligations to her client might be called into question, but having seen the Committee’s decision, she and Ms AV have a clearer understanding of the extent to which the conduct alleged involves each of them. As to Mr XP’s affidavit, Mrs RG says it was not specifically referred to in any of the submissions or materials before the Committee, but is relevant to the r 3 issue which was not notified as under the Committee’s consideration, and is referred to in the affidavits provided by Ms JM and Ms

[40] Mrs RG invites this Office to overturn the Committee’s findings and orders, and

[41] The parties attended a review hearing in Auckland on [date] November 2018, Mrs RG was represented by Ms Harkness.

[42] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:2

... 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.

[43] More recently, the High Court has described a review by this Office in the following way:3

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.

[44] Much has been made of Mrs RG’s conduct. Putting aside the hyperbole, the question is whether, in the circumstances as they were at the time, it was acceptable for Mrs RG to sign off on a Memorandum her instructing solicitor had prepared without having read all of the supporting documents herself. That is the conduct at the centre of this review. I will return to that.

[45] The complaint is that Mrs RG lied to and misled the Family Court. While there are other more general obligations, the relevant rules say:

13. The overriding duty of a lawyer acting in litigation is to the court concerned. Subject to this, the lawyer has a duty to act in the best interests of his or her client without regard for the personal interests of the lawyer.

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

[48] Without being aware that Ms XP had filed evidence, and therefore having not read it, Judge de Jong considered Mr XP’s application and the parties’ relationship property file. Although that file did not contain the affidavits filed for Ms XP on [date] August 2016, it would have contained other documents filed earlier, indicating Mrs RG was counsel on record and identifying Ms AV as her instructing solicitor. It is safe to say the Court was aware Mrs RG and Ms AV were lawyers on record for Ms XP in respect of Mr XP’s relationship property claims.

[49] The fact that Ms XP had instructed lawyers had to be a material factor in the Court considering the position of Ms XP in the ex parte application because it indicates she had chosen, for several months, to be actively engaged in the process. The fact that Ms XP had arranged for a QC to be instructed tends to underscore that. Given the obligations on Mr HK in advancing Mr XP’s interests ex parte, Ms XP’s engagement with the process could not be ignored, it could only be minimised, which is what Mr HK did. The same reasoning applies to the dispute over the date of separation. It could not be ignored, but the potential impact on Mr XP’s application for urgent ex parte interim relief had to be minimised.

[50] After months of separation and dispute, it is not clear why it had suddenly become urgent for Mr XP to apply for an injunction the day before Ms XP was due to file her affidavits. It is reasonable to assume that, like the presentation of material factors, the timing was a carefully planned aspect of Mr HK’s strategy. Whether or not Mr XP’s concerns had a valid basis, staunching potential asset leakage often is a legitimate concern in relationship property disputes.

[51] Mr HK’s interpolation lacks a proper basis and is rejected. In considering the ex parte application, it is reasonable to assume that His Honour read the papers before he made ex parte orders. While that may be an inconvenient truth in the context of Mr HK’s arguments, it would be unreasonable to assume otherwise.

[52] It is likely His Honour was looking for dates because the timing of events is often highly relevant to relationship property claims. There is often disagreement over dates because they can have significant impacts on how property is classified and divided. It is likely His Honour saw the dates: 2015 and 2010; bookends to the application Mr HK advanced for Mr XP. It is reasonable to conclude His Honour was aware that Mr XP’s position on the date of separation probably differed from Ms XP.

[53] When His Honour read Ms XP’s application, including Mrs RG’s Memorandum, it may have given him pause and reason to check Mr XP’s application, but it is highly improbable His Honour would have been misled. On the setting aside application, His Honour’s focus would have been on Ms XP’s position, based on affidavit evidence that could have been available to him before he granted the orders, but for reasons that have nothing to do with Mrs RG, was not. There is no reason to believe His Honour would not also have had Mr XP’s application in mind.

[54] It is entirely reasonable to believe that His Honour had both parties’ perspectives in mind. Having read Mrs RG’s Memorandum, if His Honour considered the discrepancies were material, he could have checked with reference to the materials filed on behalf of Mr XP a few days earlier.

[55] While His Honour might possibly have been mildly inconvenienced by having to check an apparent discrepancy, the contention that the Court was misled is firmly rejected.

[56] It is acknowledged that Mr XP’s lawyers properly took the precaution of ensuring the discrepancy was brought to the Court’s notice. Their job was to protect and advance Mr XP’s interests. There was no reason for them to miss an opportunity to do that. Some

clients instruct their lawyers to take every point. Perspectives vary, what may seem minor to one person may be of far greater significance to another.

[57] Mrs RG’s evidence is that she was not aware there was an issue with her failure to respond to the issues raised in the memorandum of [date] August 2016. As Mr XP’s lawyers had highlighted the point, she says she considered it unnecessary to file a memorandum incurring further cost. Those comments are consistent with Mrs RG’s belief that she was not aware of her error, support its inadvertency and a logical reaction.

[59] By [date] August 2016, the injunction had been set aside, the parties, at Mr XP’s suggestion, were discussing alternate dispute resolution. If an injunction were to follow, both parties would have the opportunity to participate.

[60] The arguments advanced for Mr XP only have persuasive force if it is accepted that Mrs RG deliberately lied. There is no logic at all to the suggestion that Mrs RG would deliberately choose to lie to the Court, to advance her client’s interests, in circumstances where the lie would be revealed by a glance at other papers on the Court file. No lawyer’s reputation is worth that risk.

[61] The arguments advanced for Mr XP also lack persuasive force because they rely on the basic premises that a Judge would not identify an apparent inconsistency and would not check.

Was it acceptable for Mrs RG to sign off on a Memorandum her instructing solicitor had prepared without having read all of the supporting documents herself?

[65] In addressing the standards issue, it is relevant to refer to the circumstances in which Mrs RG came to sign the memorandum. At the review hearing Mrs RG said she had five minutes to turn the documents around.

[66] Ms JM’s evidence was filed for the purposes of this review. Given Ms JM’s shared responsibility to Ms XP, that was helpful. Ms XP has also given evidence which generally corroborates that of Ms JM.

[67] The general chronology is set out above. Ms JM and Ms XP explain what went on in greater detail.

[68] The injunction was granted on a Friday and served on Ms JM on a Monday after

5 pm. Ms JM was, among other things, surprised and forwarded the email to Mrs RG. Mrs RG received two emails from Ms XP after 9 pm that Monday. It is understood from Mrs RG’s evidence at the review hearing that keeping face is of cultural significance to Ms XP, and that the injunction caused Ms XP’s financial embarrassment and loss of face. Mrs XP wanted to know how Mr XP could have done that to her.

[69] Ms JM and Mrs RG were satisfied that Ms XP’s situation was desperate and acted accordingly. They agreed an application should be filed urgently, without notice, seeking orders discharging the interim injunction. Ms XP considers her lawyers acted competently and in a timely manner. She has no complaint.

[70] Lawyers under Ms JM’s supervision drafted documents, excluding the Memorandum which was not required by the Family Court Rules, at Ms JM’s direction. Mrs RG dictated amendments and asked Ms JM to prepare a Memorandum. That was prepared after close of business Monday or early Tuesday and reviewed by Ms JM before being sent to Mrs RG for review and comment.

[71] Documents were still being amended and assembled at 11.34 am Tuesday. The Memorandum was not yet in its final form. Ms XP, who urgently wanted to regain control of funds she considered hers, was scheduled to arrive at 3.30 pm to swear her affidavit so the documents could be filed before the Court closed on Tuesday.

[73] The draft memorandum was sent to Mrs RG at 3.11 pm for review. She signed and returned it to Ms JM in time for Ms XP’s documents to be filed in Court the same day.

[74] Ms JM says she and her team prepared Ms XP’s application and evidence in less than three days, under high pressure and in urgent conditions.

[75] It later emerged that the memorandum contained errors, and although those appear to have had little impact on His Honour’s decision to set the injunction aside, by [date] September 2016, Mr HK had highlighted the errors for the Court, and sent Mr XP’s complaint to the Law Society.

[76] It bears noting at this point that there are errors in the complaint document Mr HK provided to the Committee (acknowledged by him) and in the submission document prepared by counsel for Mrs RG on review. In neither case does the error give rise to any concern that either lawyer lied, misled, or is lacking in competence or diligence. I mention them only to highlight the fact that, even when lawyers are not working under high pressure or under urgent conditions, documents sometimes contain errors. It is important to maintain a sensible perspective when considering professional conduct, and not to be caught up in hyperbole.

[77] As Hinton J said in Wilson v Legal Complaints Review Officer, the conduct rules are:4

to be applied as sensibly and fairly as possible. These are practice rules, not a legislative code.

[78] Conduct is to be considered in context, and not in an unduly technical, literal or absolute way.

[79] So, although it is framed as a complaint that Mrs RG breached the duty of absolute honesty she owes to the Court, at its heart the complaint is that Mrs RG’s conduct adversely affected Mr XP’s interests. That perspective is apparent from Mr XP’s adherence at the review hearing to the contention that his interests had been harmed by Mrs RG’s error. He says assets left the jurisdiction. When it was put to him, however, Mr XP accepted that Mrs RG had nothing to do with any such conduct, which in turn effectively extinguished his argument that her conduct had caused him harm.

[80] Looked at in context, and to adopt Mr HK’s terminology, it does not stretch credulity to accept a statement made by Mrs RG three weeks after the Memorandum was filed to the effect that she made a mistake or an error.

[81] All of the materials have been carefully considered on review. Particular attention has been paid to the materials submitted by Mr HK on behalf of Mr XP, who had asked for the hearing to be adjourned so Mr HK could attend and argue Mr XP’s

_{position. That was not necessary. Such as they are, the facts are the
facts. Lengthy}

submissions had already been filed. I am satisfied that further argument would not have assisted Mr XP’s position.

[82] The conduct complained of was minor. In all the circumstances, it is extremely unlikely that Mrs RG’s error had any impact at all on the administration of justice.

[83] So, was it acceptable in all the circumstances for Mrs RG to sign off on a Memorandum her instructing solicitor had prepared without having read all of the voluminous supporting documents herself? In the circumstances, yes, it was. As senior counsel, Mrs RG was the obvious target of responsibility for an error made on her watch. Does her conduct warrant an adverse disciplinary outcome? No.

[84] The Committee’s decision is reversed. There is no reason to take further action and no reason to publish the decision in a manner that identifies Mrs RG.

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

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

New Zealand Legal Complaints Review Officer

RG v XP [2018] NZLCRO 129 (4 December 2018)