CA v BE [2018] NZLCRO 142 (21 August 2018)

Last Updated: 5 October 2019

LCRO 207/2015

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 CA

_Applicant

AND BE

_Respondent

_DECISION

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

_changed.

Introduction

[1] Mrs CA has applied for a review of a decision by the [City] Standards Committee [X] (the Committee) to take no further action in respect of her complaint concerning the conduct of the respondent, Mr BE.

Background

[2] Ms C was employed by Mrs CA’s company. An employment dispute arose between the parties. In May 2015 Ms C consulted Mr BE. Mr BE took instructions and forwarded correspondence to Mrs CA raising a personal grievance on behalf of Ms C.

[3] In that correspondence, Mr BE, as would be conventional in initial correspondence, sent to an employer in which an employment dispute was being raised, set out his client’s concerns and laid the foundation for the employment grievance his client was intending to pursue.

[4] Mrs CA instructed her lawyer to reply to Mr BE setting out her company’s

position. Mr BE responded to the correspondence received from the company.

[5] On 6 August 2015, Mrs CA complained to the New Zealand Law Society

Complaints Service (NZLS) about the content and tone of Mr BE’s correspondence.

[6] The matter progressed to the Employment Relations Authority and was resolved at mediation on [Date] 2015.

The complaint and the Standards Committee decision

[7] The substance of Mrs CA’s complaint was that:

(a) Mr BE had handled the employment dispute in a deliberately provocative way, and in a manner which was calculated to cause unnecessary distress and embarrassment to her and her husband, and damage to their reputations;

(b) Mr BE did not treat them with integrity, respect and courtesy;

(c) Mr BE was a friend of Ms C, and that personal engagement resulted in him lacking the objectivity and independence required to handle the employment matter;

(d) Mr BE had gone beyond the bounds of professional behaviour in his correspondence;

(e) Mr BE had asserted unproven instructions/allegations as matters of fact; (f) Mr BE adopted an overly aggressive tone in his correspondence;

(g) Mr BE’s approach had the effect of making Mrs CA feel as if she was being subjected to extortion;

(h) the allegations made were scandalous and Mr BE refused to agree to keep the allegations confidential;

(i) Mr BE had breached r 12 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) (respect and courtesy);

(j) Mr BE’s conduct had caused her unnecessary distress and embarrassment (a breach of r 2.3); and

(k) Mr BE had breached r 5.3 of the Rules (independence).

[8] By way of remedy, Mrs CA sought that Mr BE be ordered to apologise to her and her husband and that he be directed to pay costs.

[9] The New Zealand Law Society Complaints Service dealt with the complaint through its early resolution service (ERS).

[10] The process adopted by the ERS generally involves the Committee making an initial assessment of a complaint and forming a preliminary view about it. If the Committee’s preliminary view is to take no further action on the complaint, a Legal Standards Officer (LSO) telephones the lawyer concerned, outlines the complaint and informs the lawyer of the Committee’s preliminary view. As a consequence of that process being adopted, Mr BE was not required to provide a formal response to the complaint made.

[11] The Committee distilled the issues raised by Mrs CA as requiring inquiry as to whether Mr BE had breached any duties owed to Mrs CA. The complaints, framed in the language of professional conduct, were that Mr BE had:

(a) failed to treat third parties with integrity, respect and courtesy (r 12); (b) failed to use legal processes only for proper purposes (r 2.3); and

(c) failed to exercise independent professional judgment on a client’s behalf

(r 5.3)

[12] The Committee delivered its decision on 7 September 2015 and determined, pursuant to s 138(2) of the Lawyers and Conveyancers Act 2006 (the Act), that no further action on the complaint was necessary or appropriate.

[13] In reaching that decision the Committee concluded that: (a) Mr BE’s duty was owed to his own client;

(b) Mr BE had a duty to conduct his professional dealings with integrity, respect and courtesy;

(c) on reviewing Mr BE’s correspondence, it could find nothing that was in any way remarkable or unusual in that correspondence, viewed from the context of the breakdown of the employment relationship between Mrs CA and Mr BE’s client;

(d) Mr BE’s language and assertions were undoubtedly a reflection of the state of affairs between the parties;

(e) Ms C’s instructions were protected by legal privilege and the Committee cannot go behind that to assess them; and

(f) no other ancillary issues raised by Mrs CA raised professional conduct issues.

Application for review

[14] Mrs CA filed an application for review on 16 October 2015. She submits

(through her counsel) that:

(a) the Committee was wrong to dismiss her complaint, particularly in the absence of seeking a response from Mr BE;

(b) Mr BE’s obligations to act in the best interests of his client were not without limits and he went beyond those limits;

(c) Mr BE’s references to the mediation were potentially misleading;

(d) the employment dispute was settled by payment of a far lesser sum than Ms C had originally claimed and this was simply a pragmatic solution to a nuisance claim;

(e) Mrs CA had never said that Mr BE had an obligation to promote her (Mrs CA’s) interests, but rather that there were limits to the actions he could take against her interests;

(f) a lawyer cannot say he was following his client’s instructions as a

justification for unprofessional conduct;

(g) Mr BE does not fairly record the employment dispute (and in any event, the rights and wrongs of that dispute are not relevant here); and

(h) Mr BE oversteps the mark on several occasions and adopts Ms C’s

instructions as truth.

[15] The outcome sought by Mrs CA is that the matter be returned to a different [City] Standards Committee for reconsideration.

[16] Mr BE was invited to comment on Mrs CA’s review application. He submits

(through counsel) that:

(a) there is no factual or legal basis for the complaints to be upheld;

(b) there is nothing remarkable or unusual in Mr BE’s correspondence;

(c) the fact that Mr BE and his client are neighbours has no bearing on the matter;

(d) it was not a run of the mill employment dispute;

(e) his correspondence was no more than was reasonable to express the position of his client; and

(f) costs should be awarded in his favour.

The hearing

[17] A hearing proceeded on 2 August 2018. Both parties attended. Mrs CA was represented by Mr ZK, Mr BE by Mr AH QC.

Nature and scope of review

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

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

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

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

(a) consider all of the available material afresh, including the Committee’s

decision; and

(b) provide an independent opinion based on those materials.

Decision

[21] I will approach this review decision by a consideration of the following: (a) Procedural matters.

(b) The parties’ arguments.

(c) Did Mr BE’s correspondence of 11 May 2015 and 18 May 2015 breach his obligation to ensure that his dealings with Mrs CA (through the vehicle of her company) were conducted with integrity, respect and courtesy?

(d) Did Mr BE make threat to repeat allegations about Mrs CA that were inappropriate and approaching the scandalous?

(e) Did Mr BE use legal process for an improper purpose?

Procedural Matters

[22] Perhaps inevitably, in view of the context from which these complaints evolved, the parties’ submissions could not avoid reference to the respective parties’ perception of the merits of the employment dispute.

[23] Mrs CA considered that the claims advanced by Mr BE’s client were entirely lacking in merit, and pursued by his client in an aggressive and opportunistic manner

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

which paid scant attention to providing accurate account of what had taken place in the workplace.

[24] Mr BE, who was described by his counsel as a leading practitioner in the employment field, considered that his client’s claim was well founded and said that he had, in twenty-five years of practice, rarely encountered workplace behaviour of the kind described to him by his client.

[25] It is not my task to determine the merits or otherwise of the employment dispute. The differing accounts of the parties have relevance to this review only to the extent that those accounts provide insight into the motivations which prompted both Mr BE’s client to instruct Mr BE to provide exposition of her complaint in the manner he did and Mrs CA’s decision to advance complaint against Mr BE.

[26] For purposes of this review, the information relevant to the conduct inquiry is narrowly confined to the two items of correspondence drafted by Mr BE, being his correspondence of 11 and 18 May 2015.

[27] In her initial complaint, Mrs CA submitted that Mr BE had lacked objectivity when advancing his client’s claim. This inability to distance himself from the case had arisen, argued Mrs CA, because Mr BE and his client were neighbours. This neighbourly relationship had, says Mrs CA, caused Mr BE to argue his client’s case as if it was his own.

[28] Framed as a disciplinary complaint, it was submitted that Mr BE had failed to exercise independent professional judgment on a client’s behalf (r 5.3).

[29] This argument was not pursued at hearing and I need address it no further, other than to note that I agree with the Committee that the scope of r 5.3 is intended in its purpose, to embrace those circumstance where a lawyer’s client makes allegation that their own lawyer’s independence has been compromised.

[30] In her review application Mrs CA made complaint that during the employment mediation Mr BE had demanded that Mrs CA drop her complaint as a condition of settlement. Mr BE strenuously rejects allegation he sought to have the complaint withdrawn.

[31] This issue was not advanced by counsel at hearing.

[32] In any event, I would have had no jurisdiction to hear the argument.

[33] This complaint was not before the Committee. As an office of review, the Legal Complaints Review Office has no jurisdiction to deal with complaints that are first raised at the review stage of the proceedings.

The Parties’ Arguments

[34] Mr ZK identified Mrs CA’s main concern, (described by him as her “highest point of objection”) as concern that Mr BE had refused to comply with request to ensure that his client’s complaints were kept confidential. As this argument was advanced, it appeared to be the case that it was being suggested that Mr BE had given indication of his intention to interview potential witnesses and that in signalling this intention, was likely to discuss with those witnesses the concerns that Mr BE’s client had raised about the way she had been treated by Mrs CA.

[35] I say, “appeared to be the case” as there was no evidence provided to suggest that Mr BE had taken steps to interview his client’s fellow employees, or that he had, in doing so, disclosed his client’s concerns to any persons interviewed.

[36] Mr ZK accepted that Mr BE was free to make inquiry, but argued that he did not need to repeat to any persons interviewed the allegations made by his client.

[37] Turning to the question as to whether Mr BE had adopted an overly robust approach in his correspondence, Mr ZK submitted that all lawyers had an obligation to conduct their business with courtesy and respect to others. He contended that a lawyer’s obligation to vigorously advance their client’s interests, did not provide cover for them to abandon their obligation to behave professionally. If a lawyer’s conduct was, as Mr ZK described it “over the top,” there should be a means to regulate that behaviour.

[38] It was Mr ZK’s submission that Mr BE’s correspondence crossed the line. It was important to the profession as a whole, argued Mr ZK, that lawyers be held to a standard of courtesy and good conduct. Mr BE had, Mr ZK argued, failed to uphold that standard by writing to Mrs CA in an excessively aggressive fashion and by allowing in that correspondence his personal views to become intertwined with those of his client. If the complaints process was unwilling to censure the conduct of practitioners who were guilty of advancing their client’s cases in an unduly robust manner, this would, argued Mr ZK, result in a “free for all” and an environment in which lawyers considered themselves to be quite unrestrained in the manner in which they presented their client’s positions.

[39] Finally, Mr ZK submitted that the Committee had misdirected itself on the law.

[40] Turning to remedies sought, Mr ZK conceded that Mr BE’s conduct could not reasonably be described as conduct which reflected infractions at the upper end of the disciplinary regime. It was not conduct he accepted that could be said to amount to “the crime of the century”. However, Mr ZK submitted that Mr BE’s approach to advancing his client’s position had been disrespectful to his client and that the affront to his client should be at least ameliorated by Mr BE proffering apology to his client.

[41] It was Mr AH’s contention, when addressing the general tone, content and flavour of Mr BE’s correspondence, that Mr BE’s correspondence was appropriate and indeed conventional, and did not in any respect offend against Mr BE’s obligation to ensure that his dealings with Mrs CA were appropriately courteous.

[42] It was his submission that Mrs CA’s suggestion that Mr BE had threatened to repeat his client’s allegations that Mrs CA had conducted herself improperly in the workplace was “entirely misconceived”. Mr BE had not, argued Mr AH, threatened to disclose details of his client’s case. His refusal to comply with Mrs CA’s request for confidentiality could not be characterised as a threat to disclose information. Mr BE was entitled to signal his intention to speak to potential witnesses.

[43] Mr AH rejected suggestion that Mr BE’s correspondence breached r 2.3 of the Rules. Allegation that r 2.3 had been breached was “difficult to follow”, as Mr BE’s correspondence was simply setting out his client’s position. It was difficult to see, argued Mr AH, how any improper purpose could be distilled from a lawyer simply setting out their client’s case.

Did Mr BE’s correspondence of 11 May and 18 May 2015 breach his obligation to ensure that his dealings with Mrs CA (through the vehicle of her company) were conducted with integrity, respect and courtesy?

[44] A lawyer is required to conduct their dealings with third parties with courtesy and respect.

[45] This obligation is reinforced in r 12 of the Rules, which provides that a lawyer must, when acting in a professional capacity, conduct dealings with other, including self- represented persons, with integrity, respect and courtesy.

[46] Whilst this review has engaged a consideration of a number of the Rules, it is r 12 which has most relevant application to the complaints under consideration.

[47] This is because it is the conduct rule which most directly deals with a lawyer’s

obligations to third parties.

[48] The obligations a lawyer may owe to third parties are limited. The Rules provide a comprehensive summary of a lawyer’s responsibility to uphold the rule of law and to facilitate the administration of justice, their obligations as officers of the court, and the obligations that are owed by them to their clients.

[49] The Committee considered that an understanding of the relationship between a lawyer and his or her client was fundamental to understanding the complaint, noting that subject to any overriding duties to the court, a lawyer’s duty is owed to their client, not to the person on the other side of the dispute.

[50] Mr ZK submitted that the Committee had misdirected itself on the law in overstating the extent of the obligation owed by a lawyer to their client, it being his view that whilst it was not disputed that a lawyer’s fundamental obligation was to protect and promote the interests of their client, that obligation did not provide a lawyer with unfettered opportunity to represent their client in any way they saw fit.

[51] With every respect to Mr ZK’s argument, I do not consider that the Committee misdirected itself when emphasising the limited duties a lawyer owes to third parties, or that in doing so, it failed to consider the question as to whether Mr BE, in exercising his responsibility to promote his clients’ interests, failed to meet his albeit limited obligations, owed to Mrs CA.

[52] The Committee reviewed the correspondence before it, and concluded that there was nothing in that correspondence which persuaded it that Mr BE had offended against his obligation to ensure that his dealings with Mrs CA were conducted with the requisite degree of courtesy and respect.

[53] I have carefully considered Mr BE’s correspondence.

[54] It is important to consider that correspondence in context and in the light of the instructions provided by his client.

[55] It is necessary to step back and form a view of the overall tone and content of the correspondence, rather than engage in a minute forensic examination of every word and line. A nuanced rather than nit-picking approach is required.

[56] Two issues bear emphasis, issues which may present as so obvious as to approach the trite in their recounting.

[57] Firstly, employment disputes, by their very nature, frequently result in both employer and employee making serious accusation about the conduct of the other.

[58] Secondly, a lawyer is obliged to follow their client’s instructions, and cannot be inhibited in providing accurate account of those instructions to a third party, by concerns that the recipient may be offended by the client’s instructions.

[59] In his correspondence of 11 May 2015, Mr BE:

(a) advises that his firm specialises in employment matters; (b) raises his client’s personal grievance;

(c) requests disclosure of specified documents; (d) sets out his client’s position;

(e) advances argument that his client’s health has been significantly compromised by what she perceived to be bullying and corrosive treatment she had encountered in the workplace; and

(f) indicates a willingness on his client’s part to engage in mediation,

[60] The correspondence is comprehensive. Much of the correspondence is comprised of Mr BE’s client’s account (as reported to Mr BE) of incidents that had taken place in the workplace. Those accounts are detailed, descriptive, and could be loosely categorised as a “blow by blow” account of events.

[61] Mr BE’s client was alleging that she had been subjected to an abusive workplace culture of such severity that her health had suffered. It is not surprising then, that she provides a vivid account.

[62] Mr BE’s correspondence of 18 May 2015, is prepared in response to correspondence received from Mrs CA’s lawyer addressing issues raised by Mr BE in his correspondence of 11 May 2015.

[63] Mr BE’s correspondence of 18 May 2015:

(a) expresses concern at the employer’s response to his client’s submission of grievance;

(b) expresses surprise that the employer had rejected argument that his client had grounds to advance a grievance;

(c) seeks clarification of the steps taken to investigate his client’s concerns; (d) provides further medical evidence;

(e) challenges specific responses provided by the employer; and

(f) rejects request for details of the personal grievance to remain confidential. [64] Mr BE’s correspondence presents in significant part as conventional and typical

of a lawyer’s initial correspondence in which grounds for a personal grievance are signalled, and correspondence which responds to an employer’s denial of any legitimate basis for a personal grievance to be pursued.

[65] Mr ZK identifies a number of aspects of Mr BE’s correspondence where he

considers that Mr BE has gone too far.

[66] He argues that on occasions Mr BE abandons the necessary element of detachment that a lawyer is required to bring to their work and adopts the mantle of his client’s argument as if it was his own. In adopting this approach, Mr BE is said to be affirming his client’s case, and causing unnecessary distress to Mr ZK’s client, by giving a legitimacy to his client’s position which was unmerited.

[67] I accept that on occasions Mr BE expresses his client’s position in terms that suggest that Mr BE is advancing a personal view (“we concur”) and in terms that present as him affirming a personal sense of indignation at his client’s situation, (“it beggars belief”), but I do not accept that the examples relied on by Mr ZK provide foundation to support accusation that Mr BE was discourteous in the way in which he advanced his client’s position.

[68] Mr BE could perhaps have framed minor elements of his correspondence more elegantly, but as I have noted, I consider that a fair and balanced appraisal of the correspondence is arrived at by considering the correspondence in its totality, rather than by plucking out and focusing on isolated words or phrases.

[69] Mr AH submitted that Mr BE could have avoided any risk of criticism by the expedient of ensuring that his comments were frequently qualified by the phrase “my client’s instructions are...”, but suggested that excessive repetition of the obvious (that a lawyer was conveying their client’s instructions rather than the lawyer’s personal views) would become cumbersome. I am satisfied that viewed in its totality, Mr BE’s correspondence, whilst a vigorous and robust exposition of his client’s position, does not assume the level of discourteousness that Mr ZK suggests it does.

[70] I accept that Mrs CA was offended by the correspondence, but I do not consider that Mr BE overstepped the mark when articulating his client’s grievance.

[71] Mrs CA is an experienced businesswoman and it is apparent from the submissions she has filed in advancing her complaint that she has a sound understanding of the lawyer’s role. She does not challenge Mr BE’s right to vigorously advocate for his client, but considers that on this occasion, robustness descended into discourtesy. To the extent that she considers Mr BE’s correspondence was overly aggressive, Mrs CA describes it as vindictive, deliberately designed to cause damage to her and her husband’s reputation, and correspondence which left her with sense that she was being subjected to extortion.

[72] In my view, Mrs CA overstates the case. She intertwines to a degree, the message with the messenger. I appreciate that she was genuinely offended by criticisms which she considered to be unfairly personal and entirely lacking in foundation. But the sting of those allegations came not from Mr BE, but from Mr BE’s client. I do not consider that Mr BE’s correspondence, viewed in its entirety could properly be described as unduly robust to the point where it borders on or becomes aggressive. It is forcefully setting out his client’s view of events. A significant component of the correspondence addresses procedural issues, and in this regard, the correspondence presents as conventional and unremarkable.

[73] I am required to bring to the process of review an independent and robust assessment. Having considered Mr BE’s correspondence with both those imperatives in mind, I am not persuaded that Mr BE’s correspondence requires or necessitates a disciplinary response.

Did Mr BE make threat to repeat allegations about Mrs CA that were inappropriate and approaching the scandalous?

[74] On review, complaint is made that the Committee failed to address Mrs CA’s

complaint that Mr BE had made threat to “repeat the allegation”.

[75] In her initial complaint, Mrs CA accuses Mr BE of refusing to agree to keep the “scandalous allegations confidential”. She suggests that Mr BE is using the threat to disseminate his client’s complaints, as leverage to achieve a settlement for his client.

[76] At hearing, Mr ZK expanded on this aspect of the complaints by describing what he considered to be the correct approach to the interviewing of witnesses, noting that Mr BE had no need to repeat the allegations and suggesting that adopting an improper approach to the questioning of potential witnesses, could result in the witness giving false evidence, improper collaboration and in extreme situations, witness coaching.

[77] Allegation that Mr BE was threatening to reveal details of his clients claim and to interview witnesses in an inappropriate manner appears to have its foundation in response Mr BE had made to request that he ensure that details of the employment dispute remain confidential.

[78] In her complaint, Mrs CA contends that:

Mr BE expressly refuses to keep the scandalous allegations confidential... Mr BE claims he cannot promise not to go around repeating the allegation to other people because he needs to be able to do this in order to gather evidence for his client... Mr BE... does not need to spread these lies in order to gather evidence for his client.

[79] Counsel acting for Mrs CA on the employment matter wrote to Mr BE responding to his correspondence of 11 May 2015. In that correspondence, request was made of Mr BE to ensure that his client’s grievance remained strictly confidential to the parties and their legal advisors.

[80] In responding to that request, Mr BE said as follows:

the final matter we refer to is the statement in paragraph 14 of your letter that our client’s personal grievance is to remain strictly confidential to the parties and their legal advisors. There is no basis for such a demand. We have already, and will continue, to gather evidence in respect of the manner in which our client’s employer has conducted itself, because such material will be directly relevant to the resolution of these issues.

[81] This is the primary evidence relied on to support allegation that Mr BE was threatening to repeat allegations to third parties, or that he was contemplating interviewing witnesses in an improper manner.

[82] I agree with Mr AH that the characterising of Mr BE’s position as a threat to repeat allegations is misconceived.

[83] Submissions made by Mr ZK in which he set out his view as to the appropriate approach a lawyer should adopt when interviewing potential witnesses, and his warning as to the adverse consequences which could arise if a lawyer approached the task of interviewing witnesses in an improper manner, in my view took the argument further down the path than it needed to travel. These submissions took Mr ZK to the point where he was postulating that a potential consequence of improper interviewing could result in witness coaching.

[84] This line of argument seemed to proceed on the assumption that Mr BE had indicated an intention to repeat his client’s allegations (he had not) or that he was destined to conduct any potential interviews in an improper fashion. Mr BE’s indication of intention to gather evidence, is translated into argument that some impropriety may

arise, if he elected to do so. In fairness to Mr ZK, in providing account of the potential consequences of improper interviewing of witnesses, he may have been simply intending to identify potential pitfalls, rather than suggesting that Mr BE had travelled that path.

[85] There is no evidence as to what approach, if any, Mr BE adopted with potential witnesses.

[86] Mr BE’s refusal to comply with request to keep the complaint confidential did not constitute a threat to disclose.

[87] Nor was it the case that Mr BE, or his client, could be prevented from interviewing a witness.

[88] I agree with Mr AH that it cannot be the case that an employer is able to restrict the ability of a claimant (or her lawyer) advancing a personal grievance claim, to speak to potential witnesses in the course of securing evidence relevant to the grievance.

[89] There is no property in a witness.

[90] Mr BE did not breach any obligation owed to Mrs CA by refusing to comply with her request that the details of his client’s complaint remain confidential.

[91] Nor can I see (short of Mrs CA successfully seeking injunctive relief) how Mr BE’s client could be compelled to refrain from talking to whomsoever she liked about her case.

Did Mr BE use legal process for an improper purpose?

[92] Complaint that Mr BE used legal process for an improper purpose engages r 2.3 of the Rules which provides that:

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, interest, or occupation

[93] I do not consider that this rule has application to the facts of this case.

[94] Mr BE was instructed to give notice of a personal grievance and to seek redress for his client. There can be nothing improper in a lawyer acting on instructions to advance a client’s claim.

[95] Mrs CA’s disgruntlement with the manner in which the grievance was

expressed, or her concerns at the nature of the allegations levelled by Mr BE’s client,

does not establish argument that legal process (in this case the process of advancing a grievance) was being deployed with purpose and intent to cause her personal embarrassment.

[96] Whilst Mrs CA considered that the grievance advanced by Mr BE’s client lacked merit, that clearly was not Mr BE’s client’s view. It is not uncommon in employment disputes, for the parties most directly engaged, to have a widely differing perspective of events that took place in the workplace.

[97] No issue was taken with the fact that Mr BE was required, on receiving

instructions, to advance his client’s case.

[98] To the extent that the steps taken by him to do so, would engage a consideration of r 2.3, that rule could only have application if it was established that Mr BE knowingly used or assisted in using the law, or legal process, with purpose to cause unnecessary distress or embarrassment to Mrs CA.

[99] The argument returns then to a consideration as to whether Mr BE, in pressing his client’s case, went too far.

[100] For the reasons traversed above, I do not consider that his correspondence was constructed with intent to cause embarrassment or distress to Mrs CA.

[101] Inevitably, the dispute would have inconvenienced Mrs CA and would have been unpleasant for her. It is compellingly clear that she considered that the allegations levelled against her were unfair and potentially compromising to her reputation.

[102] But those unfortunate and perhaps inevitable consequences of an employment dispute of this nature, are the product of the workplace dispute, not the creation of the lawyer instructed to advance the grievance.

[103] Mr BE in setting out his client’s case, and in providing response, was not using legal process for an improper purpose.

Decision

Pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006 the decision of the

Standards Committee is confirmed.

_{DATED this 21st day of August 2018}

R Maidment

Legal Complaints Review Officer

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

Mrs CA as the Applicant

Mr ZK as counsel for the Applicant

Mr BE as the Respondent

Mr AH QC as counsel for the Respondent

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