CS v GB [2018] NZLCRO 40 (22 May 2018)

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	LCRO 152/2017
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
BETWEEN	CS Applicant
AND	GB _Respondent

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

[1] Mr CS has applied for a review of a decision by the [City] Standards Committee (the Committee) to take no further action in respect of his complaint concerning the conduct of Mr GB, a lawyer, at the relevant time a sole practitioner practising as GB Law, who acted for Mr CS on a relationship property matter.

[2] Mr CS, and Mrs CS, were married in 1963 and separated in the mid-1970s. Their marriage was dissolved in June 1986.

[3] At the time of their separation they jointly owned a residential property at [address] (the property). They agreed, informally, at that time that Mrs CS, who had custody of their three young children, would have occupancy of the property.

[4] They had purchased the property with the assistance of Family Benefit capitalisation available, and a Housing Corporation loan secured by a mortgage over the property.

[5] Mrs CS assumed responsibility for the loan payments and obtained a release of the mortgage in 1988.

[6] Mr CS remarried. At the time he first saw Mr GB, on 8 March 2017, he informed Mr GB that [Mr CS] owned his own flat and Mrs CS had repaid the loan secured over the property. He said he wanted to transfer the property to Mrs CS, whilst at the same time protecting the interests of their three children, including their daughter, Ms TC. He also informed Mr GB that Ms PH acted for Mrs CS.

[7] A “couple of weeks later” Mr GB spoke with Ms PH whose office is situated in the same complex. Ms PH explained Mrs CS’s position which reflected Mr CS’s instructions to Mr GB. Some days later Ms PH provided Mr GB with a draft relationship property agreement (RPA).

[8] Mr CS made an appointment to see Mr GB on 23 March 2017. Ms TC accompanied Mr CS to the meeting. They sat around a table at Mr GB’s office where Ms ON, who worked for Mr GB, was also seated. Mr GB then left the meeting for five minutes or so to collect the RPA from Ms PH.

[9] Mr CS’s complaint arose out of the discussion that took place upon Mr GB’s return to the meeting, which led to Mr GB ending the meeting and ceasing to act for Mr CS on the matter.

[11] She stated that Mr CS’s complaint was “around the way in which a meeting was conducted” by Mr GB and “how [Mr CS] was treated by [Mr] GB” in Mr GB’s office on 23

March 2017. She requested an “investigat[ion] and watch over the way in which [Mr GB] conducts business”, and his name “struck off the register”. She stated she was “worried about other elderly people who may use his services”.

[12] Ms TC claimed that Mr GB did not provide Mr CS with “procedures for handling complaints” which were not “on [Mr GB’s] webpage”, or with “Terms of Engagement or any other paper work about engagement” when Mr CS attended at Mr GB’s office “at the end of February [2017]”, or at any other time.

[13] Ms TC stated that Mr GB did not explain the RPA to Mr CS. She said Mr CS attended at Mr GB’s office “at the end of February [2017]” for advice on “the best way to ensure [the property] would be secure for his three children should he decide to sign the house completely to Mrs CS”. He wanted to know what would happen with ownership of the property following his and Mrs CS’s death.

[14] She stated that she accompanied Mr CS to his meeting with Mr GB on 23 March

2017. She said shortly after the meeting commenced, Mr GB walked across the complex to Ms PH’ office to collect the proposed RPA which Ms PH had drafted.

[15] She said when Mr GB returned to the meeting, in response to her statement that Mr CS would not sign the RPA until [Mr CS] had “read and underst[ood] it”, Mr GB stated that he “represent[ed]” Mr CS not Ms TC. He informed Mr CS that [Mr GB] understood Mr CS had “com[e] in to sign” the RPA and Mr CS was “wasting [Mr GB’s] time”.

[16] Ms TC stated that in response to Mr CS’s request that Mr GB “explain the [agreement] to him”, Mr GB said “no” and asked Mr CS “to go away, read the [agreement]” and “let [Mr GB] know if [Mr CS] had any questions”. If not, “sign the [agreement], then drop [it] back off” with Ms PH. She said Mr GB “offered to take [Mr CS] ... and introduce him to [Ms] PH so he knew who to drop the papers back to”.

[17] Ms TC claimed that Mr GB did not keep the matters discussed at the meeting confidential. She said Ms ON who was sitting at the “same table” and to whom Mr CS and Ms TC were introduced, was able to hear their conversation with Mr GB.

[18] She said the roller door which separated Mr GB’s office from the adjacent complex “was open” so “people walking past could see straight in, and if they wished to

... would have been able to hear the conversation between [Mr CS] and Mr GB”. She

said when Mr GB walked across the complex to Ms PH’ office to collect the proposed

[19] Ms TC stated that Mr GB spoke to her and Mr CS during the meeting mainly “in a very abrupt, heated way”.

[20] She said in response to her further question to Mr GB why, when he was acting for Mr CS, it was necessary for Mr CS to “drop the [agreement] back” to Ms PH and whether Mr GB “was acting independently”, Mr GB stated that it was “too complicated”, he “didn’t want to act for [Mr CS]” and to “take” the agreement and “find another lawyer”.

[21] The Committee delivered its decision on 28 July 2017 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.

[22] In reaching the decision that “Ms TC’s complaint on behalf of Mr CS [had] not been substantiated” the Committee concluded that it “was clear” from Mr GB’s file notes that he “gave Mr CS appropriate advice”.

[23] In the Committee’s view, there was “nothing inappropriate in the meeting

between Mr GB and Ms PH in the complex when [Ms PH gave] the additional documents

... to Mr GB”. Although “Mr GB’s manner when dealing with Ms TC and Mr CS may have

been abrupt, that of itself does not amount to unsatisfactory conduct” by Mr GB.

[24] Ms TC filed an application for review on behalf of Mr CS on 15 August 2017. She states that she and Mr CS were “both very shocked” by the Committee’s decision. She considers that “most of her concerns have not been addressed”.

[25] She repeats her claim that Mr GB did not provide Mr CS with terms of engagement.1

[26] Ms TC reiterates that Mr CS’s instructions were “to look into the best way in which ... to ensure the property would be left to his three children” and not “to transfer his half of the property to [Mrs CS]”.

[27] She says when Mr CS attended at Mr GB’s office [on 8 March 2017], Mr CS did not “meet” with Mr GB in a formal way, but “popped in” to explain his need for advice. She says Mr CS did not “sit down at a table” but “stood inside the door”.

[28] Ms TC repeats Mr CS’s complaint that Mr GB ought to have explained the agreement to Mr CS at the 23 March 2017 meeting after [Ms TC] informed [Mr GB] that Mr CS would not sign the agreement “until he knew what he was signing”. She states that Mr GB did not explain to Mr CS “about [Mr CS] being entitled to a share of the former matrimonial home”, advice she says Mr CS did not receive until he instructed another lawyer.

[29] She says after Mr GB collected the agreement from Ms PH during the meeting, there had been insufficient time for Mr GB to “peruse the agreement before he met with Mr CS”.

[30] Ms TC states she had not “unduly influenced” Mr CS at the meeting, and had not “contradicted Mr CS’s previous instructions”. She says Mr GB “only gave” the RPA to Mr CS to “take away and read after [Mr GB] refused to explain ... the agreement”. She denies Mr GB suggested Mr CS make another appointment to discuss the RPA. She says she “was unhappy” when Mr GB refused to explain the RPA as requested.

[31] In declining the invitation from this Office to comment on Mr CS’s review

application, Mr GB states that he does “not wish to add any further response” and that

1 Ms TC refers to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules

[32] In his response to Mr CS’s complaint to the Lawyers Complaints Service, Mr GB stated that Mr CS informed him on 8 March 2017 that [Mr CS] wanted to transfer the property to Mrs CS and why, and that Ms PH acted for Mrs CS.

[33] He stated Ms PH informed him that Mr and Mrs CS had discussed ownership of the property for more than a year, and Mrs CS’s instructions to Ms PH were that Mr CS “wanted to transfer” the property to Mrs CS because “she had paid for it”.

[34] He says he informed Ms PH that before he met with Mr CS he needed to see the RPA “which needed to indemnify” [Mr GB] and include “the reasons behind the transfer”. He says because he did not prepare the RPA he was not responsible for the error in the agreement concerning Mr CS’s name.

[35] He said he uplifted the RPA from Ms PH in the complex. Because a page was missing Ms PH “called after” him. He said he “discussed nothing” in the complex with Ms PH.

[36] Mr GB stated that Ms TC, who did not accompany Mr CS when he met with Mr GB on 8 March 2017, “took over” the 23 March 2017 meeting. He said Ms TC “had her own agenda and contradicted” Mr CS’s “previous statements” to [Mr GB] in an “adversarial attitude”.

[37] He said he “terminated” the meeting after Ms TC “made an accusation that [he]

[38] He stated that he was concerned that Mr CS’s previously expressed wishes were being hijacked, and Mr CS was being “unduly influenced”. He said he “could no longer accept instructions”.

[39] The parties have agreed to the review being dealt with on the papers. This review has been undertaken 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.

[40] I record that having carefully read the complaint, the response to the complaint, the Committee’s decision and the submissions filed in support of and in opposition to the application for review, there are no additional issues or questions in my mind that necessitate any further submission from either party. On the basis of the information available, I have concluded that the review can be adequately determined in the absence of the parties.

[41] 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.

[42] 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.

[43] 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 consider all of the available material afresh, including the Committee’s decision, and provide an independent opinion based on those materials.

(a) Was Mr GB required to provide to Mr CS information in writing on the principal aspects of client service, and client care and service information, and if so, did he do so? — rr 3.4, 3.5 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the rules)

[45] Before a lawyer, who is not a barrister sole, commences work for a client, r 3.4 requires that the lawyer concerned “must, in advance, provide in writing to the client information on the principal aspects of client service including” the information specified in paragraphs (a) to (d).4 That information includes “the basis on which fees will be charged”, the lawyer’s “professional indemnity arrangements”, and the lawyer’s

4 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rr 3.4, 3.4A,

[46] The footnote to the rule refers to the words “in advance” being contained in s

94(j) of the Act, and recommends that lawyers “provide the information set out in r 3.4 prior to commencing work under a retainer”.5

[47] Further requirements are contained in r 3.5 which provides that a lawyer “must, prior to undertaking significant work under a retainer provide in writing to the client” the information specified in paragraphs (a) to (c) of that rule.6 That information includes “a copy of the client care and service information set out in the preface to [the] rules”.

[48] Concerning the before “undertaking significant work” requirement, it appears to

be “sufficient if the lawyer provides the relevant information as soon as possible”. Whilst:7

some minor steps will have already been taken in respect of the retainer ... it is

... expected that in most cases information in respect of both rules (3.4 and 3.5)

[49] In practice, to ensure compliance, the information required by these rules is provided to clients ahead of work commencing on a retainer.8 The mode of provision of this information is frequently by a letter of engagement, information for clients and standard terms of engagement documents which are commonly referred to collectively as “the letter of engagement” sent to clients electronically.9

[50] The question whether a lawyer has been retained is to be “determined objectively”. The fact that the lawyer concerned “had personal reservations as to whether he was going to take the case are relevant only in so far as they were objectively ascertainable”.10 In this regard, “some responsibility on making the position of whether a retainer exists or not lies properly with the lawyer.”11

[51] Rule 3.7 contains four exceptions to these requirements, each stated in the alternative.12 The second exception in r 3.7(b) is “if it is, in the circumstances, impracticable for the lawyer to provide the information referred to in those rules”.

9 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules, rr 1.6, 1.7; see also

10 Hartlepool v Basildon LCRO 79/2009 (3 September 2009) at [23]; see also GE Dal Pont,

Lawyers’ Professional Responsibility (6th ed, Thomson Reuters, Sydney, 2017) at 75.

12 ... and to the corresponding requirements which apply to barristers sole in rr 3.4A and 3.5A –

[52] In this context, the word “impracticable”, which is not defined in the rules suggests “unable to be carried out or done; impossible in practice”.13 It has been observed that this sets “a high threshold and should probably be narrowly interpreted given the purposes of the [Act]”, and “certainly it does not equate to inconvenient or administratively burdensome”. It is to be noted that “simply because” a lawyer and the lawyer’s client “[do] not consider the provision of information to be particularly useful does not mean that compliance with the rule is not practicable”.14

[53] The decisions of Standards Committees and this Office illustrate that a failure to comply may result in a finding of unsatisfactory conduct against the lawyer concerned.15

[54] The question is whether Mr GB was required to provide Mr CS with a letter of engagement, and if so, whether he did?

[55] Mr CS claims that Mr GB did not provide him with “procedures for handling complaints” or terms of engagement. Mr GB did not respond to this allegation. The Committee did not consider this issue.

[56] As noted above, Mr CS first met with Mr GB on 8 March 2017, when Mr CS called into Mr GB’s office without an appointment to ask for advice on how best to protect the interests of his and Mrs CS’s three children, whilst at the same time transferring his interest in the property to Mrs CS.

[57] Mr GB made a file note of his conversation with Mr CS that day, the main points from which are that Mr and Mrs CS had “been living apart for many years”; Mrs CS had “paid [the] mortgage”; Mr CS wanted to “give the house” to Mrs CS; they had “talked about” this matter “for 1 year”; Mr CS owned his own flat; Ms PH was acting for Mrs CS.

[58] Both parties agree that the 8 March 2017 meeting was brief. Ms TC says that “you couldn’t really call the first meeting ‘a meeting’”. She says Mr CS “popped in” to Mr GB’s office that day. She says [Mr CS] “didn’t even sit down at a table; he just stood

15 Lawyers and Conveyancers Act 2006, s12(c) — a contravention of the Act or any rules which is neither wilful or reckless (and therefore not misconduct under s 7(1)(a)(ii)).

[59] Mr GB’s file note also states that he advised Mr CS that [Mr CS] was “entitled to half” the property and to have Ms PH “draft documents” if he was “serious” about going ahead with the transfer. He says he also advised Mr CS that in view of his wish to transfer the property to Mrs CS without consideration, [Mr GB] “would need very good reasons to certify it”.

[60] Following the 8 March 2017 meeting, Mr GB says that he contacted Ms PH. He says Mrs CS’s instructions to Ms PH reflected Mr CS’s instructions to [Mr GB]. He says he also informed Ms PH that he “needed to peruse the agreement” before he met with Mr CS and that the RPA “needed to indemnify him, and detail the reasons” for the transfer.

[61] In her statement to the Committee, Ms PH refers to Mr GB’s caution about Mr CS’s wish to transfer the property to Mrs CS. Ms PH states Mr GB “was clearly not happy about acting” for Mr CS in such circumstances, but she assumed that the draft RPA she gave to him “some days later ... must have made [Mr GB] happier ... as [she] heard nothing more”.

[62] From the preliminary work, described above, undertaken by Mr GB after the 8

March 2017 meeting, it is reasonable to conclude that Mr GB accepted instructions to act on the matter. In other words, Mr GB had been retained by Mr CS. It follows that Mr GB could be expected to have provided a letter of engagement to Mr CS as soon as possible, or as soon as reasonably practicable, and in any event before “commencing work”, and before “undertaking significant work”.

[63] Apart from enquiring of Ms PH, it appears that no further attendances were provided by Mr GB until his meeting with Mr CS and Ms TC on 23 March 2017. That is, apart from the letter of engagement dated 22 March 2018 headed “Your Relationship Property Agreement Advice” and addressed to Mr CS “Delivery: [delivery by hand]” which was on Mr GB’s file produced to the Committee. From this, Mr GB may have intended to provide the letter of engagement to Mr CS in person at their meeting the following day.

[64] Ms TC is adamant that Mr CS did not receive that letter. In my assessment, with the file copy of the letter of engagement on Mr GB’s file stating that it was to be handed to Mr CS, in the absence of contrary evidence from Mr GB, it seems more probable than not that Mr GB did not provide the letter of engagement to Mr CS either before, or at the 23 March 2017 meeting.

[65] It would have been sensible for Mr GB to have provided his letter of engagement soon after the 8 March 2017 meeting, or at the latest at the commencement of the 23

March 2017 meeting. However, as will be discussed in more detail below, Mr GB ended that meeting having explained to Mr CS and Ms TC that because of the nature of the communications that had passed between them at the meeting he “could no longer accept instructions”.

[66] As I have observed, the work carried out by Mr GB in the period before 23 March appears to have been of a preliminary nature, or “some minor steps”, which may not amount to work of a “significant” nature.

[67] In circumstances such as these, where the retainer ended prematurely, it is open to argument that because by 23 March 2017 Mr GB had not carried out any work of a “significant” nature, the requirement to provide Mr CS with, at the very least, the client care and service information required by r 3.5 had not yet arrived.

[68] Overall, although it is my view that Mr GB, in compliance with both rr 3.4 and

3.5, ought to have provided his letter of engagement to Mr CS earlier, in the particular circumstances of this matter, by a close margin, I do not consider that Mr GB’s conduct warrants a disciplinary response on this issue.

[69] A lawyer must disclose to his or her client information that is relevant to the retainer, take reasonable steps to ensure that the client understands the nature of the retainer, keep the client informed about progress, and consult the client about steps to be taken to implement the client’s instructions.16

[70] With limited exceptions, a lawyer risks a complaint from a client with a prospect of a disciplinary response if the lawyer does not carry out the client’s instructions.17

16 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules, rr 7, 7.1.

17 Duncan Webb, Kathryn Dalziel and Kerry Cook, Ethics, Professional Responsibility and the

[71] Where the lawyer is unsure about the client’s instructions then “it is incumbent on the lawyer to obtain clarification of those instructions. The lawyer may not proceed on an assumption the client agrees to a certain course of action”.18

[72] Mr CS claims that Mr GB did not explain the RPA to [Mr CS] as requested. He claims that when Mr GB returned to the 23 March 2017 meeting with the RPA [Mr GB] had just uplifted from Ms PH, [Mr GB] invited Mr CS to sign the RPA. Mr CS says that Ms TC, on his behalf, declined until he had read and understood the RPA.

[73] In the exchange that followed, Mr CS says Mr GB stated that [Mr GB] expected Mr CS would sign the RPA that day and that Mr CS was “wasting [Mr GB’s] time”; [Mr CS] requested Mr GB to explain the RPA to him; Mr GB declined and asked Mr CS to take the RPA away to read, let [Mr GB] know if he had any questions or if otherwise happy with the RPA, to take it back to Ms PH’ office.

[74] In response to Ms TC’s questions why it was necessary for Mr CS to take the RPA back to Ms PH and whether Mr GB was “colluding” with Ms PH, Mr CS says Mr GB ended the meeting.

[75] For his part, Mr GB, whilst not providing his own detailed version of these events, says Ms TC “had her own agenda and contradicted [Mr CS’s] previous statements to [Mr GB]”, had “adopted an adversarial attitude” and by accusing him of “colluding with Ms PH ... impugned his professional integrity”. He stated he was concerned that Mr CS was being “unduly influenced” by Ms TC.

[76] Both parties agree that on returning to his office with the RPA, Mr GB stated that the purpose of the meeting was for Mr CS to sign the RPA and to which Ms TC, on Mr CS’s behalf, declined until Mr GB had explained the RPA to Mr CS.

[77] Ms TC says Mr GB then “told” Mr CS to take the RPA “away [to] read” and come back to [Mr GB] with any questions, or if otherwise “happy to sign”, “then to drop [the RPA] back” with Ms PH. Ms ON’s account differs slightly. She says that Mr GB asked

_{Mr CS to take the RPA away to read and then “make another
appointment to discuss”.}

18 At 289–291. r 1.6 requires the information to be provided in a clear manner, and must not be misleading - the lawyer must take into consideration the identity and capabilities of the client, and the nature of the information being provided - see discussion in Sandy v Kahn LCRO 181/2009 (25 December 2009) at [38].

[78] From the information produced, it appears that Ms TC’s following question to Mr GB whether “he was acting independently”, or, according to Mr GB’s account of Ms TC’s question, that he “was colluding with Ms PH”, inflamed an already tense atmosphere which prompted Mr GB to end the meeting.

[79] In my assessment of what appears trying circumstances for the parties at the meeting, it seems unlikely that the opportunity arose for Mr GB to take Mr CS through the RPA and explain it to him then. That is consistent with both parties’ accounts that Mr GB suggested to Mr CS that he take the RPA away to read and let [Mr GB] know if [Mr CS] had any questions.

[80] It follows from this that it is not so much that Mr GB refused to explain the RPA to Mr CS, but rather the nature of the communications between the parties at the meeting resulted in Mr GB suggesting to Mr CS that he take the RPA away to read, and either to call Mr GB with questions (Ms TC’s account) or to make another appointment (Ms ON’s account). For these reasons, it is my view that no issues of a disciplinary nature arise for Mr GB on this aspect of Mr CS’s complaint.

[81] The fundamental obligations of lawyers include the obligation “to act in accordance with all fiduciary duties and duties of care owed to clients, and to protect the interests of clients”.19

[82] Following from that obligation r 8 imposes a duty on lawyers “to protect and to hold in strict confidence all information concerning first, “the client” to whom the duty is owed, secondly, “the retainer”, and thirdly, “the client’s business and affairs acquired in the course of a professional relationship” as provided in the rule.

[83] The words “to protect and to hold” require positive action by a lawyer to comply with the rule.20 The footnote to the rule notes that even though information a lawyer acquires about his or her client, while acting for the client, is in the public domain, such

20 New Zealand Law Society "Practice Briefing: Protecting Clients' Personal Information" (June

21 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care Rules) 2008, r 8, footnote

[84] The duty of confidence “commences from the time a person makes a disclosure to the lawyer in relation to a proposed retainer (whether or not a retainer eventuates)”.22

A “disclosure” by a person to a lawyer in respect of “a proposed retainer” between them concerns “all information concerning [the person] ... and the [person’s] business and affairs” provided to or imparted to the lawyer by the person (r 8). The word “disclosure” is qualified by the words “in relation to a proposed retainer (whether or not a retainer eventuates)”.

[85] There are both required, and permitted exceptions to the duty of confidence.23

[86] Mr CS claims that Mr GB breached his duty of confidence owed to [Mr CS], first, by having Ms ON sit at the table during their meeting, and secondly, when [Mr GB] spoke to Ms PH in the open complex at the time he collected the RPA from Ms PH.

[87] Concerning Ms ON, Mr GB explained that she worked for him “part-time typing”.

[88] By the very nature of a lawyer’s practice or law firm, employees of the practice or firm will gain knowledge of clients’ business and affairs, particularly where the lawyer’s office is open plan and without a separate meeting room, as appears to have been the case with Mr GB’s office.

[89] Conversations between a lawyer, legal executive, personal assistant or other member of the firm in the practice and clients may be overheard by other members or staff of the practice.

[90] For this reason, good office practice and administration dictates that all firm members and staff will be appraised from the outset of their engagement or employment by the firm that it is vital to observe that confidence. For example, where, as with Ms ON, the employee’s work includes word processing, there is every likelihood that the employee will be asked to prepare a letter of advice to, or a document for the client that contains information confidential to the client.

[91] The observation in these circumstances that some relaxation from the strict application of the duty of confidence “can be presumed to be consented to by implication”

can be found in the exception to the duty where “disclosure is necessary for the effective operation of a lawyer’s practice”.24

[92] Concerning Mr GB’s conversation with Ms PH in the complex, Ms TC alleges that she “could hear and see” Ms PH and Mr GB “discussing the case in the public area [of the complex] ... clearly not protecting [Mr CS’s] privacy”. Her concern is not what Mr GB disclosed to Ms PH, but whether their conversation could be overheard by someone else in the complex.25 She dismisses Mr GB’s statement that he and Ms PH “discussed nothing in the complex”. She says this “simply isn’t true”.

[93] However, Ms TC does not describe what she actually heard Ms PH and Mr GB say to each other. Mr GB says after he uplifted the RPA from Ms PH’ office, Ms PH called after him to hand a missing page to him, and “explained ... that she needed [the RPA] signed too as [Mr CS’s] name was incorrect on the property title”.

[94] In her statement produced to the Committee, Ms PH supports Mr GB’s account. She says her “voice was deliberately kept low as [Mr GB] had [the] roller door [to his office] open ... as [she] didn’t want [Mr GB] embarrassed in front of [Mr CS]”. She says “no one else” heard the conversation which took place in a relatively quiet section of the complex.

[95] Mr GB and Ms PH spoke with each other in an area of the complex where there were few, if any, other people about. As such, the risk of a breach of confidence by either lawyer was at the lower end of the scale. Even if another person overheard the conversation, the question is whether any information about Mr CS, or for that matter Mrs CS, was disclosed. No such evidence has been produced.

[96] My assessment of the parties’ accounts concerning this issue is that it is more probable than not that there was no breach of confidence by Mr GB. It follows that no issues of a disciplinary nature arise for him on this aspect of Mr CS’s complaint.

25 Another permitted exception contained in r 8.4 is "where-(a) the client expressly or impliedly authorises the disclosure" for example, where the lawyer is representing the client in negotiations, and with the client’s consent, certain information concerning the client may be divulged to the lawyer acting for the opposing party.

[97] Rule 3.1 provides that a “lawyer must at all times treat a client with respect and courtesy and must not act in a discriminatory manner in contravention of section 21 of the Human Rights Act 1993”. This duty has also been described as “hav[ing] proper attitudes towards clients (that is, to be non-discriminating and non-patronising)”.26

[98] Whether this duty or requirement has been met “will vary according to the circumstances” in respect of which “the test must be an objective one and the focus must be on the lawyer’s conduct as opposed to the client’s response” because “[t]o determine otherwise would impose an impossible standard based on a client’s reaction to the lawyer’s conduct”. A qualification to this approach is that:27

in making an assessment of what constitutes appropriate conduct, it is to be expected that a lawyer should be required to conduct him or herself with due regard for the client’s known standards and sensibilities.

[99] An illustration of the application of the rule where an adverse finding was made against the lawyer concerned was where the lawyer, also an executor and a co-trustee, acting on an estate administration had sent emails to the client which were discourteous, and unprofessional.28

March 2017 in “a very abrupt, heated way”. She says Mr GB did not treat Mr CS “fairly or respectfully”.

[101] For his part, Mr GB says he was “angered” by Ms TC’s “accusation that [he] was colluding with Ms PH” which he regarded as “impugn[ing] his integrity”. He says he then “terminated the meeting” and “could no longer accept instructions”.

[102] In support of Mr GB’s position, Ms ON stated that Mr GB was not “rude or unprofessional”. In her view, Ms TC “was very aggressive” towards Mr GB at the outset of the meeting and “did not give [Mr GB] a chance to explain himself – [Ms TC] got uptight and argumentative”. She said Mr GB’s “communication with [Ms TC] was factual and straight forward”.

[103] It is most unfortunate that what was, on the face of it, a relatively straightforward instruction to meet a client to go over an agreement and respond to any questions, had

such a disagreeable outcome for Mr CS, the client, Ms TC, as support person, and Mr

[104] In circumstances such as these where the parties provided differing accounts as to what was said, or for that matter was not said in communications between them, in the absence of other evidence to assist it is not possible for a decision maker to prefer one version over the other.

[105] For Mr CS to succeed in his claim that Mr GB did not treat him with respect and courtesy, he must prove on “the balance of probabilities applied flexibly to the seriousness of the matter’’ that his version of events is to be preferred over Mr GB’s version.29

[106] As noted earlier, the nature of a review of a Standards Committee’s decision by this Office is “informal, inquisitorial and robust”. This is unlike the process in a Court where evidence can be tested by examination and cross-examination.

[107] Without the benefit of examining the witnesses, and because there is both conflicting and insufficient information for me to make a definitive finding, I find myself in the position of not being able to conclude whether, on the balance of probabilities, Mr GB contravened the rule.

[109] Pursuant to s206(4) this decision is to be made available to the public with the names and identifying details of the parties 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

CS v GB [2018] NZLCRO 40 (22 May 2018)