QO v Standards Committee [2018] NZLCRO 46 (14 June 2018)

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	LCRO 116/2015
CONCERNING	an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING	a determination of the [Area] Standards Committee
BETWEEN	QO Applicant
AND	[AREA] STANDARDS COMMITTEE _Respondent

[2] The Committee found that Ms QO had failed to administer her practice in a manner that ensured she adhered to the duty she owed to her clients to protect information that was confidential to them. The Committee determined there had been unsatisfactory conduct on Ms QO’s part pursuant to the statutory definitions in s 12(a) and (c) of the Lawyers and Conveyancers Act 2006 (the Act). The Committee censured Ms QO and decided it’s decision should be published without identifying Ms QO.

[3] Ms QO would like the determinations of unsatisfactory conduct made against her reversed. The grounds for Ms QO’s application for review are:

(a) She personally did not make the unauthorised disclosures, they were made by her employees. Her position is that if she had been aware of the administrative practices that resulted in the unauthorised disclosures at the relevant times, she would have treated the employee conduct as serious misconduct and it may have provided grounds for dismissal.

(b) When she became aware of the conduct that had led to the first disclosure she addressed it appropriately with the firms’ employees “emphasising the need to preserve confidentiality and to ensure that systems and practises safeguarded that”.

(i) of the circumstances in which two individual pages were disclosed in 2012 and 2015 or which employee was responsible for those disclosures;

(ii) that identifies practices or procedures in her firm, for which she was responsible, which were substandard;

(iii) that supports a determination that she did not diligently attend to her responsibility to protect and hold all information concerning clients in strict confidence;

(v) of any personal failing on her part that contributed to or caused the errors.

(d) In the circumstances, she should not be held to a standard of strict or vicarious liability.

(e) Her decision not to attempt recovery of documents from Mrs MN was reasonable based on her knowledge and experience of that client.

[4] Ms QO rejects the Committee’s view that the evidence of three disclosures of confidential information, the second of which was large scale, justifies the conclusion that there is a “systemic-related practise” for which she was responsible.

[6] Ms QO attended a review hearing in [City] on 29 May 2018 with her support person, Mr RS. Ms QO considered her ability to respond in full to the Committee had been constrained to an extent by the obligations of confidentiality she owed to Mrs MN and Ms KY. Although both clients had made complaints, Ms QO was not aware of either client having expressly waived privilege.

[7] On review Ms QO provided information that may have been confidential or privileged only to the extent necessary to establish context, and to account, for her conduct after materials left her office. As reviews are conducted in private pursuant to s 206(1) of the Act, the Committee already knows who the clients were and there is no reason to publicly identify either client or Ms QO, that is unobjectionable.

[8] Section 206(3) of the Act obliges Legal Complaints Review Officers (LCRO) to perform their functions and duties and exercise their powers in a way that is consistent with the rules of natural justice. Natural justice relies on fairness, which is achieved by LCROs exercising discretion in determining applications for review.

[9] 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.

[10] 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.

[11] 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:

[12] Ms QO acted for Mrs MN in relation to charges of fraud between 2010 and late

2012. Disclosure in Mrs MN’s case took place by instalments which meant that Ms QO’s staff had to copy and send disclosure documents to Mrs MN more than once during the retainer. Over the course of the retainer, the file grew to contain around

[13] In July 2012, Mrs MN identified a single page of information that related to another of Ms QO’s clients in a bundle of disclosure she had received from Ms QO’s office. Mrs MN advised Ms QO. The page was destroyed.

[14] As a result of that incident, Ms QO met with her staff and emphasised the importance of each staff member maintaining high standards to protect the confidentiality of the firm’s clients. Ms QO says that all of the firm’s employment agreements with staff specified the obligation to maintain the confidentiality of information they acquired in the course of their work, so a breach of confidentiality could trigger a disciplinary process between employer and employee. Ms QO says she

_{became aware that one of her staff had a practice of recycling partly
used paper as}

scrap. She did not encourage that practice. She emphasised the relevant firm policies, which also did not encourage that practice.

[15] It seems that after entering guilty pleas, Mrs MN decided she wanted to vacate those pleas. On or about 18 November 2012, Mrs MN asked Ms QO to send her files to her.

[16] Ms QO arranged for her staff to copy the files. Ms QO says that although by then the file ran to around 20,000 pages, she decided against sending them to a commercial copier outside the firm. Ms QO considered that attracted an unacceptable risk to Mrs MN’s privacy. She knew Mrs MN was very sensitive about her privacy and she did not know if or how Mrs MN’s privacy would be protected if she was not holding the materials.

[17] Various members of the firm’s support staff photocopied Mrs MN’s files. It took many hours, mostly early and late in the day to avoid the firm’s busiest times. Ms QO says that according to the firm’s policy, the photocopied materials that were to be sent to Mrs MN should have been checked by the secretarial staff and cross checked by one of the firm’s partners before being sent out. Ms QO suspects pressure of work meant that policy may not have been observed well or at all on this occasion.

[18] The materials were sent to Mrs MN in December 2012 and she left them in their wrapping. Mrs MN says she gave the materials to her new lawyer in late January

[19] Mrs MN says that in mid-2013 she spotted pages in amongst the materials that had been copied at Ms QO’s firm that she did not think should be there, but did nothing about it.

[20] Ms QO’s firm closed down in October 2013, and that partnership was dissolved. Ms QO established a new firm and employed all new staff.

[21] Mrs MN says that she was discharged without conviction on criminal charges on 13 December 2013. Mrs MN expressed her disappointment in an email to Ms QO over the advice she had given, based on which she had pleaded guilty, and said she felt very let down.

[22] It seems Mrs MN was reviewing materials in December 2013 because she says she again noted there was information on them that did not relate to her matter. Mrs MN did not tell Ms QO, but some months later described:

literally hundreds of pages of information belonging to hundreds of people and associated other persons, firms, lawyers, the Crown, Courts, CYP&F, Justice Department, Judges, Counsellors, Legal Aid, Police, Probation and so the list goes on, of information that was not mine.

[23] Mrs MN says the materials were on the rear of information that was personal to her and copies of reports that related to her matter. She describes “a major privacy breach... for many people in [City] and surrounding districts”.

[24] Mrs MN says she decided she would destroy those materials later, but keep them secure in the meantime.

[25] Mrs MN waited until September 2014 before contacting Ms QO about the materials she had. Mrs MN assured Ms QO she would treat the materials in her possession with integrity.

[26] Ms QO says she was “initially sceptical and wary” when Mrs MN contacted her. She declined to speak to Mrs MN over the phone, but suggested two options, either Mrs MN could destroy the materials herself, or she could courier them to Ms QO so she could personally recopy Mrs MN’s information and return that to her. Ms QO offered to meet the courier costs.

[27] Not satisfied with Ms QO’s response, Mrs MN sought to impose conditions on the return of the materials. She seems to have been particularly focussed on the suggestion that Ms QO, or someone else from her firm who was known to Mrs MN, should come to her home to retrieve the materials.

[28] Ms QO proposed a number of alternatives that did not include her or anyone else visiting Mrs MN at her home. Ms QO also advised that her former firm had closed and as she had employed all new staff at her new firm Mrs MN would not know any of them.

[29] Mrs MN refused to assist Ms QO in any way, suggesting Ms QO was “very unconcerned about” what Mrs MN believed were breaches of others’ privacy. By October 2014, Mrs MN had contacted the media. The article that was published reflected Mrs MN’s assessment of the extent of the privacy breach, but was made without comment from Ms QO. Ms QO later described the article as “sensationalised and inaccurate”.

reached with Mrs MN”. With assistance from the OPC, Ms QO arranged for a colleague from outside her firm, Mr YX, to uplift the materials from Mrs MN over a weekend at Ms QO’s cost.

[31] Ms QO says she briefly reviewed the materials retrieved from Mrs MN. She says the vast bulk was not confidential or sensitive in any way. Much of it was a voluminous publicly available report. Ms QO noted, however, that perhaps 20 pages did contain information that was confidential to other clients of Ms QO’s former firm. She was appalled.

[32] Ms QO destroyed the confidential information that had been in Mrs MN’s hands, and arranged for her law clerk to deliver a full copy of Mrs MN’s file without charge in December 2014.

[33] Ms QO recognises the seriousness of the error that had been made in November 2012, says it was isolated and that the support staff member she believes may have been responsible is not an employee of her present firm. Ms QO says that if she had been able to trace the error back to a particular staff member at the time, disciplinary action would have followed and perhaps even dismissal. However, two years later she says it is impossible to trace the error to any particular event or person because so many staff did so much copying over so many hours.

[34] At the review hearing Ms QO explained her reluctance over sending bulk photocopying out of the office. Although she can see advantages, she perceives an increased level of risk to client confidentiality that she has no way of managing. Ms QO recognises the potential for conflict between promoting her own interests in avoiding or mitigating the risk of inadvertent disclosure by delegating bulk photocopying work outside the firm, and her obligation to protect and hold confidential client information.

[35] Ms QO said at the review hearing that she still cannot work out how any of the information came to be among the materials her office sent to Mrs MN. She rejects the notion of deliberate sabotage by an employee.

[36] Ms QO says she changed her office practices so she now has a large paper recycling bin into which all used paper is placed. The firm has an express policy that no paper is reused, and that staff check and cross check any photocopying that leaves the office. She considers, and it is accepted, that photocopying, checking and cross- checking are administrative tasks that lawyers properly delegate to administrative staff.

[37] Ms QO represented Ms KY on criminal charges. Ms KY was convicted on a charge of manslaughter. She wanted to appeal on the basis of alleged inadequacies in Ms QO’s representation of her.

[38] Ms QO’s PA at her new firm copied Ms KY’s file. There were around 20,000 pages. The PA came in to the office on a Saturday morning and checked the copies. She logged four hours of overtime. Ms QO cross checked the copies. After they had been thoroughly checked, a copy was despatched to Ms KY.

[39] In early February 2015 Ms KY contacted NZLS expressing concern over materials she said were on the file Ms QO’s firm had supplied to her and should not have been, and materials she felt should have been there, but were not.

[40] Ms KY said the material she had indicated Ms QO was “the crown prosecutor for a child sex abuse case”. Ms KY did not supply the material or a copy of it. Ms KY says the file she did receive caused her to think that certain documents of her own were missing and had been sent on to other people.

[41] In her reply to Ms KY’s complaint, Ms QO said that although she had acted for defendants in child sex abuse cases, she had never been a Crown prosecutor. Ms QO explained the careful process she and her secretary had gone through before sending Ms KY her file. She said that materials from Ms KY’s file had been mislabelled or incorrectly coded and were not stored under Ms KY’s name. However, Ms QO confirmed she had checked the files herself for completeness. She says copies of Ms KY’s file were sent directly to appellate counsel and to Ms KY herself, but to no one else. Ms QO says she was “stunned and appalled” to be told Ms KY’s file contained a document that belonged on another client’s file.

As you are adamant you have never been a crown prosecutor and not done a child sex abuse case, then you should be able to rest easy that I have decided to retain the document until after the Law Commission investigation into what you have done with confidential documents.

I am planning on have a bonfire with most of the documents, it will be the very first one I burn, I promise. I hope you meant it when you said you would meet all costs of its destruction, as I’m thinking of doing it in a tinder dry national park and not be around to take the rap.

[43] In a somewhat less inflammatory email to NZLS, Ms KY accepted Ms QO had not been a Crown prosecutor, but expressed concern that some of the more sensitive materials that would have been in the file sent to her appeal counsel were not in the file that had been provided to her.

[44] At the review hearing Ms QO confirmed that she had never seen the document Ms KY referred to in her complaint. She says she may have been too quick to accept that the materials sent out by her office actually contained any such confidential document, without anyone actually having seen it. Ms KY did not provide a copy of the document alluded to in her complaint.

[45] While she could not be sure how any of the incidents had occurred, Ms QO expressed the view that the incidents in 2012 and 2015 were unrelated and isolated, rather than evidence of a systemic issue. She confirmed that her office has always had policies in place to protect the confidentiality of client information. She says she now maintains even more rigorous processes and that the reuse of paper is actively discouraged. She says she ensures her employees maintain high levels of awareness around the obligation to protect client confidentiality. Ms QO says her experiences with Mrs MN and Ms KY have taken her from a high level of conscientiousness to a state of what she describes as paranoia.

[46] Ms QO says she has responded appropriately to the issues the complaints raise and ensures her employees are directed to do likewise.

[47] Complaints and reviews must be determined on the evidence. More serious allegations should be supported by more compelling evidence. The obligation of confidence is owed to each client. Allegations of breach of duty to a client are serious and should be supported by fairly convincing evidence before an adverse finding is made against a lawyer.

[48] There is no independent evidence that verifies Ms KY’s complaint. Ms KY did not produce a copy of the information she said she had. As soon as Ms QO explained she had never acted for the Crown, Ms KY changed her position. Ms KY was a disgruntled former client. In addition to lacking corroboration in the form of the material

supposedly sent, or a copy of it, the email Ms KY sent to Ms QO on 18 February 2015 provides a measure of support for the inference that her complaint may have been mischievous.

[49] Ms QO found it extremely difficult to believe she and her secretary had missed the page when each of them had carefully checked through the bundles of materials before sending them out.

[50] There is no evidence from appellate counsel to suggest his bundle also contained material that should not have been there.

[51] Ms QO acknowledged that she had not seen the material Ms KY referred to, and says she may have been too quick to accept Ms KY had received any such material.

[52] There is no evidence to support Ms KY’s claim that she received information that was confidential to any of Ms QO’s clients.

[54] It is not accepted that Ms KY’s complaint is based on a proper evidential foundation. Based on the available evidence, on the balance of probabilities, the evidence does not lead to the conclusion that Ms QO breached her duty of confidence to a client. The evidence suggests Ms QO probably did not.

[55] As to the complaint that some materials were missing from the bundle Ms QO sent to Ms KY, it is understood that restrictions are imposed on copying and disseminating some of the more sensitive materials that relate to criminal matters. While materials may be provided to counsel, for review with the client, not all materials are for general release. The materials Ms KY says she did not have generally seem to fall into that kind of category. In the circumstances, no disciplinary concern arises.

[56] In all the circumstances, the inquiry based on Ms KY’s complaint will receive

[58] Evidence of practitioner conduct is to be considered, and reviews determined, with a view to the purposes of the Act which are threefold:3

(a) to maintain public confidence in the provision of legal services; (b) to protect the consumers of legal services; and

[59] Mrs MN’s complaint and the own motion inquiry primarily touch on the first of those. The duty on lawyers to protect and hold client information in strict confidence serves to maintain public confidence in the provision of legal services. People trust lawyers to protect and hold client information in confidence.

[60] Ms QO accepted that in July 2012, Mrs MN had a single page that contained confidential client information. That was the first breach of client confidence. In 2014, Ms QO received a bundle from Mrs MN that Ms QO’s office had sent to her in November 2012, that contained, by Ms QO’s estimate, around 20 pages of information that was confidential to one or more of her former firm’s clients. That concluded the second breach of client confidence. It is accepted that in both cases Ms QO did not become aware the confidential information had left her office until after the event.

[61] Whether Ms QO knew or not, once the confidential information had left her office, she was no longer holding it and could not protect it in accordance with the duty she owed to the clients who might claim the information as confidential pursuant to r 8 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules).

[62] The question of whether Ms QO’s conduct falls within any of the definitions of unsatisfactory conduct contained in the Act is resolved simply by reference to s 12(c).

In this Act, unsatisfactory conduct, in relation to a lawyer or an incorporated law firm, means—

(a) conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct that falls short of the standard of competence and diligence that a

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

[64] The Committee’s view was that Ms QO’s conduct fell within ss 12(a) because it demonstrated a lack of competence and diligence, and (c) because it contravened rr

8 and 11. Two determinations of unsatisfactory conduct were recorded, and a censure imposed.

[65] Rule 8 imposes a duty on lawyers to protect and hold in strict confidence all information concerning a client, the retainer, and the client’s business and affairs acquired in the course of the professional relationship. The fact that Mrs MN had received information that was confidential to clients of Ms QO’s former firm from that firm in July and November 2012, is evidence that the strict duty imposed by r 8 had not been adhered to on two separate occasions.

[66] Ultimately, as one of the partners in the firm, Ms QO was responsible for the conduct of her practice.4 On this occasion, the buck stops with her.

[67] Rule 11 obliges lawyers to administer their practices in a manner that ensures the duties to existing, prospective and former clients are adhered to. In both cases the confidential information was amongst materials that had been photocopied by staff at Ms QO’s former firm. Photocopying, particularly in bulk, is an administrative exercise.

[68] The fact that Ms MN received information that was confidential to clients of Ms QO’s former firm is not necessarily evidence that Ms QO or her staff did not generally administer her practice in a manner that ensured the duty in r 8 was adhered to. It is evidence that on two occasions Ms QO or her staff did not administer her practice in a manner that ensured the duty in r 8 was adhered to.

4 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 11.3.

[69] Section 12(c) defines unsatisfactory conduct as conduct consisting of a contravention of any practice rules made under the Act that apply to the lawyer. Rules

8 and 11 are practice rules made under the Act that applied to Ms QO. Both were contravened.

[70] Strictly on that basis, there was unsatisfactory conduct on Ms QO’s part.

[71] However, it is noted that determining reviews calls for the exercise of discretion. It is appropriate for the Review Officer to exercise some particular caution before substituting her own judgment for that of the Committee without good reason.

[72] The first significant factor that affects the exercise of discretion is that Ms KY’s

[73] It is also noted that Mrs MN was not a client whose interests were affected. I observe that by not responding promptly to the discovery that she received other people’s confidential information in November 2012, Mrs MN allowed herself to become part of the problem. It appears from her correspondence that she became far more concerned about her own position around the time the OPC became involved.

[74] It is accepted that Ms QO was unaware of either breach when the bundles left her office in July and November 2012. It is also accepted that Ms QO took all reasonable steps to ensure that her practice generally was administered in a manner that ensured that duties to clients were adhered to.

[75] It is not accepted that the evidence supports a finding that confidential client information made its way to Mrs MN because of a lack of diligence or competence on the part of Ms QO or her staff. At the review hearing Ms QO confirmed that bulk photocopying has been a routine facet of her practice at both of her firms. Bulk photocopying has to be done. It has to be done carefully and diligently, but not to an unattainable standard of perfection. While 100 per cent accuracy is an aspirational goal, it is not a realistic expectation in practice. However diligently a lawyer conceives of and polices systems and cross checks, systems and cross checks are fallible, like the people who operate them.

[76] There is no evidence that suggests Ms QO’s professional practices are sloppy.

[77] It is not at all clear that Ms QO could have done better in terms of her firms’ systems for checking and cross checking before materials left the office. Ms QO is obliged to act in a timely manner. A greater number of checks would not improve

timeliness, or necessarily result in better quality control. Practitioners have to strike a balance between efficiency and effectiveness.

[78] It is not entirely clear what happened in November 2012, which makes it difficult to know how to prevent a recurrence. All Ms QO can do is review existing systems, reinforce best practice and deter practices that tend to undermine adherence to the duties lawyers owe. Her practice is such that bulk photocopying cannot be avoided. The risks around it have to be managed. That is what Ms QO did and has continued to do.

[79] It is possible the contraventions of r 8 occurred because of a practice Ms QO had not approved and that was inconsistent with all the careful controls she had put in place. Nonetheless, lawyers are bound by a duty to protect and hold client information in strict confidence. That duty serves to maintain public confidence in the provision of legal services. People trust lawyers to protect and hold client information in confidence.

[80] It is not necessarily the case that attributing fault to an errant employee relieves a lawyer of responsibility. In some cases, the taking of all reasonable steps may do no more than affect the consequences that should properly follow.

[81] The entirely unacceptable practice of reusing paper appears to have surfaced as part of the debrief after Mrs MN reported having received the page she should not have had in July 2012. Ms QO says she firmly discouraged the practice and emphasised her expectations and existing practices, which included a check of all materials by a staff member, followed by a cross check by one of the firm’s partners.

[82] The second disclosure of confidential client information to Mrs MN was revealed in 2014, but began in November 2012 with bulk photocopying. It can only have been pure coincidence that the materials copied in November were destined for the same client who had been the recipient of the single wayward page in July.

[83] Beyond a strong suspicion that one of her former employees may have been responsible, Ms QO has no explanation for recycled paper being used on the first or second occasion. She cannot account for what seems to have been almost a ream of used paper having been loaded into the photocopier. Ms QO dismisses the notion of a deliberate act of sabotage.

[84] Ms QO can offer no explanation beyond pressure of work for errant pages being missed when the bundles were supposed to have been checked. Ms QO has no way of knowing for sure whether one or both of the requisite checks were carried out in

July or November 2012, diligently or at all. At the time, it seems there may have been no record kept of the checks that were made or who made them. With hindsight, an initialled checklist may have been a helpful way to keep a record of administrative tasks.

[86] The Committee was concerned at Ms QO’s response to Mrs MN’s revelation that she had a mass of information that was confidential to Ms QO’s other clients in her possession. It took Ms QO six weeks and intervention by the OPC to recover the materials Ms MN had.

[87] Ms QO says that initially she was “sceptical and wary”. She would not know whether her instincts about Mrs MN’s report were reliable until she recovered the materials. She would not know if she had failed to protect and hold confidential client information, and if so to what extent, until she recovered the materials from Mrs MN.

[88] Ms QO is an experienced criminal practitioner. She had been in a professional relationship with Mrs MN for over two years between 2010 and 2012. Ms QO’s professional relationship with Mrs MN had ended two years before Mrs MN’s revelation. The only communication Ms QO seems to have received from Mrs MN was to the effect that she had given bad advice. Ms QO says Mrs MN was hostile towards her. She had no reason to believe Mrs MN might have changed her view.

[89] Holding onto materials Mrs MN should not have had for nearly two years without telling Ms QO is difficult to reconcile with what Ms QO knew of Mrs MN’s particular sensitivities around her own privacy. After so much time, Mrs MN’s approach begs many questions, and the explanations and justifications Mrs MN offered subsequently do little to resolve those questions. Mrs MN’s description of herself as having “limited emotional and physical energy” is at odds with the significant effort she expended in her negotiations with Ms QO over the return of the materials and her complaint to NZLS. It is difficult to reconcile Mrs MN’s claim that she is sensitive about her own privacy, with her failure to recognise that others have the same right. She had nearly two years to think about what to do, but made no attempt to return the materials to Ms QO.

[90] It is implicit in her correspondence to Ms QO that Mrs MN had her own agenda. She was not going to make it easy for Ms QO to recover the materials. Initially, for whatever reason, Mrs MN wanted Ms QO to come to her home.

[91] Ms QO considered her options were limited by what she knew of Mrs MN. Amongst other things, she knew Mrs MN lived in a remote location and that access to her home was through a locked gate. Ms QO knew Mrs MN was mistrustful, had a difficult history and felt threatened by authority figures. Mrs MN put up quite a number of somewhat curious obstacles.

[92] Ms QO did her best to negotiate, but she believed, rightly or wrongly, that the only way Mrs MN would return the materials was if Ms QO personally paid her a home visit at an agreed time. Ms QO believed her personal safety could be at risk if she were to oblige Mrs MN. As far as Ms QO was aware, Mrs MN did not know anyone else at Ms QO’s office, so there was no one else there she could send to collect the materials that Mrs MN would trust. Ms QO contacted a colleague in the police, but decided against taking a police officer along in deference to Mrs MN’s sensitivity to authority figures. Ms QO’s could think of no one else she could turn to for assistance.

[93] With hindsight, perhaps Ms QO could have found a colleague who would accompany her, or perhaps organised a private investigator. However, if she had, there was no guarantee that Mrs MN would have made herself available. Whoever went could well have been faced with a locked gate and a wasted trip, all at Ms QO’s cost.

[94] Ms QO did not know for certain whether Mrs MN even had any confidential client information. It is significant that she did not ignore the risk. Although it took her some weeks, very sensibly, Ms QO contacted the OPC. Mrs MN did likewise. The deadlock was resolved and the materials retrieved.

[95] The Committee was concerned about the large scale of the unauthorised disclosure. The Committee’s decision seems to rest on the premise that Mrs MN’s description, as reported in the media, was accurate.

[96] Ms QO said at the review hearing that by her estimate the bundle Mr YX retrieved from Mrs MN contained around 20 pages of information that contained material that was confidential to one or more of her clients. The rest was mostly a lengthy public report and other innocuous odds and ends.

description of what she had. It is completely at odds with Ms QO’s description.

[98] Without seeking further information from Mrs MN, it is difficult to know how closely she read the materials she had and whether her understanding of what she had was accurate.

[99] If what Ms QO says is correct, much of what Mrs MN perceived as hundreds of pages of information that belonged to others, was mostly no more than a publicly available report. Although Mrs MN’s complaint includes reference to Legal Aid, Police, Probation, the Crown and Courts, there is no reason to believe any of them were Ms QO’s clients.

[100] Ms QO acknowledges there was some confidential client information amongst the materials. Mrs MN’s description is generalised and reads as exaggerative. Of the two descriptions of what Mrs MN had, Ms QO’s description is more likely to be accurate than Mrs MN’s. While Mrs MN should have had no information that was confidential to any of Ms QO’s other clients, the scale of the disclosure was not as large as the Committee’s decision records.

(b) did not ignore the risk, and endeavoured to negotiate an acceptable outcome with Mrs MN offering to cover all the costs and only drawing the line at putting herself at risk; and

[102] With hindsight, the only thing Ms QO could perhaps have done differently was to seek assistance from a colleague or the OPC earlier although it is accepted that neither may have resulted in Ms QO recovering the information any sooner.

[103] As to the Committee’s decision, it is relevant to note that the lack of evidential support for Ms KY’s complaint means r 8 was contravened on two occasions, not three. It is relevant to note that the scale of the disclosure that began in November 2012 was nothing like the 411 documents referred to in the Committee’s decision. While still inconsistent with the duty imposed by r 8, 20 odd pages is a smaller scale altogether.

[104] Further, it is not accepted that Ms QO acquiesced in any way to the practice of using recycled paper in her office. It has to be disposed of somehow. There are secure bins at Ms QO’s office. Ms QO had controls in place, including carefully selecting staff, reference checking, confidentiality provisions in employment agreements, policies of checking and cross checking, and the availability of clean photocopying paper. Those controls should have worked but were defeated, either by accident or false economy. While there could well have been consequences for the

employee concerned, it is Ms QO as one of the principals in the firm, who bears responsibility.

[105] There is a duty on lawyers to protect and hold client information in strict confidence. That serves to maintain public confidence in the provision of legal services. All the efforts a lawyer makes can be undermined by inadvertency or a renegade employee. People trust lawyers and their employees to protect and hold client information in confidence. Risky, loose and unauthorised practices do nothing to promote any of the purposes of the Act. The evidence does not support a finding that any of the approved practices at Ms QO’s firm were risky or loose.

[106] On balance, it is unfair to hold Ms QO responsible for conduct she had taken the steps to control. No matter how diligently a lawyer conceives and polices systems and cross checks, systems, like the people who operate them, are fallible.

[107] This review considers evidence of two, not three, incidents in which Ms QO’s firm did not hold and protect confidential client information. The July 2012 incident involved a single errant page, the November 2012 incident involved significantly less confidential client information than the Committee understood Mrs MN had.

[108] The proposition Mrs MN advanced, of a system-wide failing by Ms QO and her firm, is not accepted.

[109] Ms QO’s conduct is not marked by a lack of professionalism in her dealings with Mrs MN over her revelation. It is not clear what more Ms QO could have done to protect and hold the confidential client information that Mrs MN inadvertently received and undertook to treat with integrity until she was prepared to return it to Ms QO. Ms QO’s conduct does not bear any of the hallmarks of a lack of professionalism.

[110] In all the circumstances, the determinations of unsatisfactory conduct are reversed.

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

QO v Standards Committee [2018] NZLCRO 46 (14 June 2018)