TJ v WO [2018] NZLCRO 51 (22 June 2018)

Last Updated: 23 July 2018

	LCRO 314/2013
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 [X]
BETWEEN	TJ Applicant
AND	WO Respondent

DECISION

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

been changed.

Introduction

[1] Mr TJ has applied for a review of a decision by the [Area] Standards Committee

[X] (the Committee) to take no further action in respect of his complaint concerning the conduct of the respondent, Mr WO.

Background

[2] The background to this complaint arises from litigation that Mr TJ and Mr WO had been engaged in before the High Court.

[3] In [Month Year], judgments were issued by the Court in respect to two strike out applications and an application for further particulars. The strike out applications were unsuccessful. Mr TJ succeeded with his application for further particulars. Costs were reserved.

[4] On [Day Month Year], Associate Judge XX, after having received submissions from the parties, delivered an interim judgment on costs. In that judgment, directions were made that costs were to be awarded on a 2B basis.

[5] The Associate Judge noted that his decision on the items to be allowed in relation to each of the applications considered was reserved to allow opportunity for further submissions from the parties.

[6] In submissions filed with the Court on [Day Month Year], Mr WO submitted that:

• (a) Mr TJ had duplicated a cost claim;
  
• (b) Mr TJ had intentionally and fraudulently submitted claims for costs that were duplicated; and
  
• (c) cost claims were in part dishonest, deceitful and fraudulent.
  

[7] Mr TJ, in his additional submissions filed, submitted that if a strict approach to awarding costs on a 2B basis was followed, he would be entitled to a cost order in the sum of $ , but by reducing his claim for time involved in the preparation of his affidavit from 10 days to 5 days, which he was prepared to accept, he argued that Mr WO should be ordered to pay costs in the sum of $ , together with disbursements of $Redacted.

[8] In its costs decision delivered on 2 August 3013, the Court allowed costs to Mr TJ in the sum of $Redacted, together with disbursements of $

The complaint and the Standards Committee decision

[9] Mr TJ lodged a complaint with the New Zealand Law Society Complaints Service (NZLS) on 21 June 2013. The substance of his complaint was that Mr WO had made what Mr TJ described as a scurrilous attack on Mr TJ’s reputation, by alleging in documents filed with the Court that Mr TJ had:

• (a) acted dishonestly;
  
• (a) acted deceitfully;
  
• (b) committed a crime; and
  
• (c) breached his duty to the court.

[10] The Committee delivered its decision on 18 October 2013 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.

[11] In reaching that decision the Committee determined that:

• (a) both Mr TJ and Mr WO were self-represented in the proceedings; and
  
• (b) neither was providing regulated services and accordingly the complaint could not be considered as either unsatisfactory conduct under section 12 of the Act, nor was it misconduct under any of the s 7 provisions.
  

[12] In determining to take no further action on the complaint, the Committee noted that whilst it may have had concerns about the intemperate language adopted by Mr WO in his submissions, the conduct had occurred in the context of a longstanding and bitter dispute between the two practitioners.

[13] The Committee was not satisfied, considering the context in which the conduct took place, and the high threshold that had to be met to justify a finding that a practitioner was not a fit and proper person to engage in practice, that it was necessary to impose a disciplinary sanction.

Application for Review

[14] Mr TJ filed an application for review on [Day Month Year].

[15] He submits that:

• (a) the Committee had erred in concluding that Mr WO was not providing regulated services;
  
• (b) in the alternative, a finding of unsatisfactory conduct could be made against a practitioner, even if the practitioner was not providing regulated services;
  
• (c) the Committee’s decision was at odds with the decision in Orlov v New Zealand Law Society (No 8), which stands as authority for the proposition that a practitioner must not say what Mr TJ describes as “naughty words” about an officer of the Court;1
  

1 Orlov v New Zealand Law Society (No 8) [2012] NZHC 2154, [2013] 1 NZLR 390.

(d) the Committee took irrelevant considerations into account, namely the acrimony between the parties, a factor that the High Court in [case name] said should not be taken into account;2

(e) the Committee had failed to properly analyse the evidence;

(f) the Committee had failed to consider whether Mr WO was suffering from “cognitive distortions” which rendered him unfit to practice;

(g) Mr WO was being extended a degree of tolerance that would not be extended to any other practitioner; and

(h) the Committee had pre-determined the outcome.

[16] Mr WO was invited to comment on Mr TJ’s review application.

[17] He advised that he did not wish to respond to the application, other than to note that he had made an audio recording of Mr TJ making what Mr WO described as a threat to cause him inconvenience, if he (Mr WO) proceeded to make a complaint against Mr TJ. He also submitted that Mr TJ had, in the course of proceedings, described a party’s cost application as fraudulent.

The Hearing

[18] The matter proceeded as an applicant only hearing. Mr WO was offered an opportunity to attend the hearing, but advised that he did not wish to do so.

Nature and scope of review

[19] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:3

... 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

2 [Citation removed]

3 Deliu v Hong [2012] NZHC 158, [2012] NZAR 209 at [39]- [41].

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.

[20] More recently, the High Court has described a review by this Office in the following way:4

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.

[21] 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.
  

Analysis

[22] There has been some considerable delay in having this decision available to the parties. I apologise to both for that delay.

[23] Mr TJ took me through his submissions in a careful and considered manner. At the conclusion of the hearing, I summarised the issues that had been addressed by Mr TJ and invited him to confirm that the matters summarised, accurately recorded the arguments advanced on review. After further discussion with Mr TJ, I am satisfied that the following matters fall for consideration:

• (a) Was Mr WO providing regulated services?
  
• (b) Were Mr WO’s actions of sufficient gravity to merit consideration of a misconduct finding?
  
• (c) Was the Committee decision that a disciplinary sanction was unmerited, compromised by its observation that the conduct complained of occurred in the context of longstanding and bitter proceedings between the two practitioners?
  

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

(d) If it was concluded that Mr WO was not providing regulated services, had he nevertheless breached any of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules)?

Issue 1 — Was Mr WO providing regulated services?

[24] Mr TJ made forceful submission that the Committee had significantly erred in concluding that Mr WO was not providing regulated services.

[25] It was his view that the Committee had failed to apply the correct legal test, in particular, that it had failed to recognise that the test for establishing whether a lawyer is providing regulated services engages a consideration as to whether the conduct complained of was “connected” to the providing of legal services.

[26] Mr TJ argued that the Committee’s finding that Mr WO’s conduct was unconnected to the providing of regulated services, was inconsistent with the decision of the High Court in Orlov.5

[27] In Orlov, complaint had been made about the conduct of a practitioner who had made criticisms of a Judge who had presided over cases in which the practitioner had been involved. It was contended that the criticisms made were unreasonable and merited a consideration as to whether the practitioner’s conduct required censure.

[28] In considering the question as to whether the conduct complained of had occurred during a time that the practitioner was providing regulated services, the Court concluded that the conduct engaged in when making the allegations, involved work that was at least connected to the provision of regulated services.

[29] Mr TJ urges a similar approach here and argues that it would be, as he describes it, “asinine” not to conclude that Mr WO, in defending the defamation proceedings, was not providing regulated services.

[30] It is important to examine the definition of regulated services. That examination must be conducted within a broader examination of the potential disciplinary findings that can be made against a practitioner.

[31] If, following inquiry into a disciplinary complaint, a practitioner’s conduct is considered to have been capable of reaching the threshold that would require imposition of a disciplinary sanction, one of two conduct findings may be made, either a finding that

5 Orlov v New Zealand Law Society (No 8), above n 1.

the conduct complained of was unsatisfactory, or alternatively, the more serious finding of misconduct.

[32] A finding of ‘unsatisfactory conduct’ can be made under ss 12(a) or (b) of the Act only if the conduct complained of occurred in the course of providing regulated services. These sections provide that unsatisfactory conduct can exist only in respect of:6

• (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 member of the public is entitled to expect of a reasonably competent lawyer; or
  
• (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—
  
  • (i) conduct unbecoming a lawyer or an incorporated law firm; or
    
  • (ii) unprofessional conduct; or ...
    

[33] A finding of unsatisfactory conduct may be made under s 12(c) of the Act in respect of conduct that is unrelated to the provision of legal services, but is nevertheless considered be a breach of the regulations or practice rules.

[34] The circumstances in which a lawyer who is not providing regulated services may still be subject to a misconduct finding under the Act are described in s 7 as:7

conduct ... which is unconnected with the provision of regulated services by the lawyer ... but which would justify a finding that the lawyer ...is not a fit and proper person or is otherwise unsuited to engage in practice as a lawyer

[35] A finding of misconduct can be made only by the Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) and although the threshold for referral to the Tribunal has now been abandoned (Orlov),8 there is nothing to suggest that a misconduct finding would be made under s 7(1)(b)(ii) in any circumstances other than in respect of conduct of such seriousness as to throw the propriety of allowing the lawyer to continue in practice in doubt. While in s 7(1)(b)(ii) the additional phrase “or is otherwise unsuited to engage in practice as a lawyer” is also added it is nevertheless very clear that the test of misconduct in that subsection is high.

[36] In arguing at first step that Mr WO’s conduct was so egregious as to merit consideration of the possibility of a misconduct finding, Mr TJ submitted that the Committee’s error in concluding that Mr WO was not providing regulated services,

6 Lawyers and Conveyancers Act 2006, s 12.

7 Section 7(1)(b)(ii).

8 Orlov v New Zealand Law Society [2013] NZCA 230, [2013] 3 NZLR 562.

removed the option for reaching a misconduct finding under ss 7(1)(a) and (2) of the Act, or in the alternative, an unsatisfactory conduct finding under ss 12(a), (b) and (d).

[37] Regulated services are defined as the provision of legal work, a description which the Court has described as being “reasonably predictable” in its terms.9

[38] “Legal services” is defined as services that a person provides by carrying out legal work for any other person.

[39] “Legal work” includes:

• (a) the reserved areas of work;
  
• (b) advice in relation to any legal or equitable rights or obligations; and
  
• (c) the preparation or review of any document that:
  
  • (i) creates, or provides evidence of, legal or equitable rights or obligations: or
    
  • (ii) creates, varies, transfers, extinguishes, mortgages, or charges any legal or equitable title in any property.
    

[40] The remaining parts of the definition are not applicable to these circumstances.

[41] The “reserved areas of work” of relevance for this review includes work carried out by a person:

• (a) in giving legal advice to any other person in relation to the direction or management of any proceedings that the other person is considering bringing, or has decided to bring, before any New Zealand Court or New Zealand Tribunal; and
  
• (b) in appearing as an advocate for any other person before any New Zealand Court or New Zealand Tribunal.
  

[42] Lawyers’ conduct held by the Courts to have been “connected” to the provision of regulated services include responding to a Standards Committee enquiry,10 making

9 Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987, [2015] 2 NZLR 606 at [101].

10 Auckland Standards Committee No 1 v Hart [2012] NZLCDT 20 at [44]–[45].

allegations about the judiciary,11 communications to colleagues and to the Legal Complaints Service,12 and recovery of legal fees.13

[43] Mr TJ advanced two main arguments in support of his contention that Mr WO was providing legal services when representing himself in the defamation proceedings.

[44] Firstly, he noted that initially Mr WO had engaged counsel to represent him in the proceedings (Mr WO was at this point, says Mr TJ, acting as an instructing solicitor) and had engaged further counsel as the matter progressed.

[45] I am not persuaded that it is established that Mr WO was providing regulated services, simply because he instructed counsel to represent him at commencement.

[46] Secondly, Mr TJ submitted that the Committee had failed to apply the correct test when determining whether Mr WO had been providing regulated services, it being his view that the Orlov decision now clearly establishes that the inquiry must consider whether Mr WO’s conduct was connected with the provision of legal services.

[47] The Committee gave its decision before the judgment in Orlov was delivered.

[48] In my view, the critical component engaged in the provision of regulated services is the presence of a client.

[49] As defined in the Act, “regulated services means [emphasis added] ... legal services”.

[50] Legal services, are “services that a person provides for carrying out work for any other person [emphasis added]”.

[51] Mr TJ argued that the defamation action had its genesis in proceedings that he and Mr WO had been engaged in whilst representing individual clients, and Mr WO’s participation in the defamation proceedings was therefore clearly connected with the provision of regulated services.

[52] In [case name], a case involving Mr TJ in which the issues under consideration in part had a degree of similarity with those addressed in Orlov, the presiding judge indicated that she had “some difficulty” in reading s 7(1)(a) as to have been intended to

11 Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal, above n 9, at [109].

12 Hong v Legal Complaints Review Officer [2016] NZHC 184 at [10]–[11].

13 A v Canterbury Westland Standards Committee No.2 of the New Zealand Law Society [2015] NZHC at [28]–[29].

have expanded the scope of regulated services to include work connected to the provision of regulated services.14

[53] Rather, it was the Judge’s view in [case name], that the correct approach, on the facts of that particular case, was to focus on the conduct “at a time of the provision of legal services”.

[54] In adopting this approach, the Court concluded that the conduct complained of was legal work in the sense as generally understood by those words, “i.e work carried out for the benefit of clients”.15 Further, the Court held that Mr TJ had, in advancing his complaints, been clearly trying to secure an advantage for his clients, and that correspondence and court proceedings engaged by the complaints, was:16

legal work in the sense of work incidental to giving legal advice to his clients generally, regarding appearing as an advocate for them. Either way, the relevant conduct was regulated services.

[55] The decision in [case name] does not shift attention from the requirement that the services provided, whether direct or incidental, retain a connection to a client.

[56] In the present instance, Mr WO’s memorandum was drafted in circumstances where he was clearly representing himself. He was not either directly or incidentally, representing a client. He was not advancing or preserving a client’s interests in defending accusation that he had defamed Mr TJ, nor, in my view, does the fact that some of the allegations that Mr TJ may have been advancing as grounds to support accusation of defamation, may have arisen from comments arising in earlier litigation, sufficiently shift the focus from the obvious fact that Mr WO and Mr TJ were, in the course of the defamation proceedings, litigating a personal dispute which had become both convoluted and intensely acrimonious. The broader context of the dispute, was that both men had, over a lengthy period of time, been very critical of the other’s conduct.

[57] Defamation proceedings are, by their very nature, proceedings which are advanced to preserve and protect personal reputation.17

[58] It is clear from the observations made by the Associate Judge in the two cost decisions, that he had formed a view that the case had consumed a considerable amount of the Court’s resources. This prompted the Associate Judge to note that his

14 [Citation removed].

15 At [60].

16 At [60].

17 I note that the associate judge refers in his cost decision of [Day Month Year], to the fact that Mr TJ had pursued other causes of action (not in defamation) in the proceedings, but it was my understanding that the primary focus of the proceedings was the defamation action.

consideration of costs, should pay particular attention to the disciplines of proportionality required by the High Court Rules.

[59] At paragraph [15] of his costs decision of 2 August 2013, the Associate Judge noted that:18

[60] Whilst I do not wish to read more in to the Associate Judge’s words than may have been intended, viewed in the context of his concerns at the excessive length of time the interlocutory applications had taken to be heard, his description of the materials received by the court as “massive” for the matters involved, and his discussion as to the need for proportionality, it is reasonable to conclude that the Associate Judge had formed a view that the lawyers engaged in the dispute had not brought to the proceedings the degree of distance that would be expected of a lawyer engaged in conducting a case on behalf of a client.

[61] This simply reinforces that the personal elements of their dispute would seem to distance the dispute from one in which it could be concluded that either party was providing regulated services, or services that were connected to the provision of legal services.

[62] I do not consider that Mr WO was providing regulated services when he filed the memorandum with the court which caused Mr TJ such offence.

Were Mr WO’s actions of sufficient gravity to merit consideration of a misconduct finding?

[63] It was Mr TJ’s contention that Mr WO’s conduct in filing a memorandum with the Court that made such serious attack on Mr TJ’s reputation was conduct that merited a misconduct finding. As the LCRO has no jurisdiction to make findings of misconduct, that outcome could only be potentially achieved either by this Office prosecuting the matter before the Tribunal, or alternatively, returning the matter to the Committee for further consideration.

[64] In his memorandum on costs filed on [Day Month Year], in response to Mr TJ’s memorandum of [Day Month Year], Mr WO challenged Mr TJ’s costs claim.

18 [Citation removed].

[65] In that memorandum, Mr WO:

• (a) provided a list of abbreviations to cross reference aspects of Mr TJ’s claim. Included in the list was the descriptor AC, which Mr WO explained was to reference claims which were “Accounted for already so fraudulent”;
  
• (b) alleged that Mr TJ had claimed for items for which there was no entitlement, being described by Mr WO as “dishonest claims”;
  
• (c) alleged that Mr TJ had “intentionally and fraudulently” sought costs to which he was not entitled; and
  
• (d) alleged that Mr TJ had behaved dishonestly, fraudulently and deceitfully.
  

[66] Mr TJ was offended by allegation that he had provided information to the court in a dishonest and fraudulent fashion. His sense of affront was exacerbated by his concern that Mr WO had, in Mr TJ’s view, a history of slurring Mr TJ’s reputation, and a seemingly obstinate and persistent refusal to desist from making extreme and unfounded attacks on Mr TJ’s character.

[67] Mr TJ went so far as to suggest that Mr WO suffered from a cognitive disorder. It was his view that the public required protection from Mr WO.

[68] A lawyer’s most treasured asset is his or her reputation.

[69] A loss of that reputation before the court can have catastrophic consequences for a practitioner.

[70] Comments of the nature made by Mr WO in documents filed with the court, if made without good cause, could reasonably prompt a consideration as to whether a disciplinary response was required.

[71] As an officer of the court, a practitioner is obliged to uphold the rule of law and to facilitate the administration of justice.19

[72] The overriding duty of a lawyer is as an officer of the court.

[73] A lawyer has an absolute duty of honesty to the court and must not mislead or deceive the court.20

19 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 2.

20 Rule 13.1

[74] A lawyer engaged in litigation must not attack a person’s reputation without good cause in court or in documents filed in court proceedings.21

[75] In providing response to Mr TJ’s complaint that his comments to the court were scurrilous, Mr WO submitted that his comments reflected his view and opinions, were stated with what he describes as “cause” and were privileged. Further, he maintained that Mr TJ was on a campaign to cause him personal loss, a campaign he describes as one seeking “vengeance”.

[76] If it was the case that the memorandum filed by Mr TJ was fraudulent, dishonest and deceptive, that would provide defence to accusation that Mr WO had made unwarranted attack on Mr TJ’s reputation.

[77] This point was picked up on by Mr TJ when he wrote to the Complaints Service on [Day Month Year], advising that the Associate Judge had issued his final costs decision. Mr TJ advised that the Associate Judge had not, in the course of his decision, made any “findings” on the fraud allegations. In advancing this argument, Mr TJ was construing the Judge’s failure to pass comment on Mr WO’s allegations as evidence of the Judge’s dismissal of the allegations. But nor did the Judge make any observations on Mr TJ’s memorandum.

[78] Whilst Mr TJ was encouraged by the fact that the Judge had elected not to make comment on Mr WO’s accusations, he would have been less heartened by the Judge’s decision.

[79] That decision bears some careful scrutiny.

[80] As has been noted, before delivering his final costs decision, the Associate Judge had cautioned the parties of the need to ensure proportionality.

[81] Mr TJ calculated costs recoverable of $ but in an endeavour as he described it to be “fair”, submitted that the court should allow recovery in the sum of

$ .

[82] Costs were awarded in the sum of $ .

[83] On any assessment, this presents as a significant reduction.

[84] Mr WO’s contention that the costs claimed by Mr TJ were close to five times more than that to which he was entitled, presented as not far off the mark.

21 Rule 13.8

[85] In the course of what was a detailed and comprehensive costs judgment, the Associate Judge noted that Mr TJ had:

[86] Mr TJ’s memorandum presents as concerning, particularly to the extent that the judge determined that Mr TJ had advanced claims for costs that had previously been awarded.

r ”

There is frequent reference in the Associate Judge’s decision to and repeated description of Mr TJ’s claims as being .

[88] Whilst, as has been noted, Mr TJ was encouraged by the Judge’s failure to comment in his decision on the allegations made by Mr WO, the Judge also elected to refrain from passing comment on the manifest inadequacies of Mr TJ’s cost memorandum and, in particular, the repeated attempts by Mr TJ to make claim for costs to which he was not entitled.

[89] The Associate Judge had before him, when considering costs, a memorandum that substantially overstated the sum of costs properly allowable and a challenge to that memorandum which was expressed in intemperate and hyperbolic language.

[90] It is not for me to speculate on the Judge’s motivation, but in providing the careful and comprehensive analysis of the cost memoranda without being drawn into any comment on the conduct of either party, the Judge simply dealt with the issues before him and, as is always the case with any decision from a court, let that decision speak for itself.

[91] Mr TJ invited the Complaints Service, and now this Office, to deal with potential conduct issues that were squarely before the court but it is clear that the matters, which raised alarm for Mr TJ, did not prompt any judicial comment.

[92] There are numerous disciplinary decisions, both from Standards Committees and from this Office, that have emphasised that it is the court who has oversight of a lawyer’s conduct when a lawyer is appearing before the court.

[93] This is not, of course, argument which is advanced to suggest that the regulatory regime should abrogate its responsibility to provide a disciplinary oversight of a lawyer’s

conduct simply because the conduct complained of occurred when the lawyer was appearing before the court. Indeed, a significant component of the Rules are devoted to detailing the obligations and expectations on a lawyer when appearing before the court. It is a lawyer’s fundamental obligation to uphold the rule of law and to facilitate the administration of justice.

[94] But in circumstances where allegation is made of such serious conduct (fraud), it is relevant and appropriate to consider the relevance of the court’s response to the allegation, or its lack of response. It is the Judge who has the closest familiarity with the case, and who has had the advantage of observing the parties at first hand.

[95] In electing to refrain from commenting on the memoranda, it is reasonable to conclude that the Judge, who was best placed to consider the conduct in its full context, did not consider that Mr WO’s intemperate descriptions of Mr TJ, considered in context, were of such a degree of seriousness that issues of potential misconduct arose.

[96] It is important to emphasise that the Judge’s view would have been informed from the position of him having concluded (as evidenced by his comments in the first cost decision) that the proceedings in general were not being well managed by the practitioners.

[97] Whilst I consider that the approach taken by the presiding Judge is of assistance in determining, in context, whether the conduct complained of approached the level of misconduct, (it being my view that if the Judge considered that issues of misconduct potentially arose he may have been prompted to comment), a determination as to whether issues of unsatisfactory conduct arose, are appropriately addressed through the process of a disciplinary inquiry.

[98] I do not consider that the conduct, considered in context, would merit the threshold for consideration of a misconduct finding.

Was the Committee decision that a disciplinary sanction was unmerited, compromised by its observation that the conduct complained of occurred in the context of longstanding and bitter proceedings between the two practitioners.

[99] Mr TJ was concerned by comment, in the Committee’s decision, that the conduct complained of had occurred in the context of “longstanding and obviously bitter proceedings between the parties”.

[100] I took from what were reasonably extensive submissions on this point at hearing, that he was concerned that the gravity of Mr WO’s statements had been

diminished by the Committee, because of its view that the conduct had to be viewed as arising in a context of an ongoing and fractious dispute. The conduct, in colloquial terms, could be viewed as part of a “tit for tat” exchange.

[101] I do not, having carefully considered the comment made, form a view that the comment was of any material consequence to the decision reached by the Committee.

If it was concluded that Mr WO was not providing regulated services, had he nevertheless breached any of the Conduct Rules?22

[102] Having concluded that Mr WO was not providing regulated services, and that the conduct complained of, if established, would not meet the threshold for a misconduct finding, I now turn to consider whether the conduct constituted a breach of the regulations or practice rules.

[103] A finding of unsatisfactory conduct may be made under s 12(c) of the Act in respect of conduct that is unrelated to the provision of legal services, but is found to be a breach of the regulations or practice rules.

[104] The rule I consider of relevance is r 10, which provides that a lawyer must promote and maintain proper standards of professionalism in the lawyer’s dealings.

[105] I am mindful when considering the reach of r 10, of the desirability of ensuring that rules of professional conduct be applied as specifically as possible, rather than requiring adherence to general standards that may be difficult to interpret and apply.23

[106] This Office has observed that r 10 “is reflected in s 12(b) of the Act which defines unsatisfactory conduct as ‘conduct that would be regarded by lawyers of good standing as being unacceptable, including...(ii) unprofessional conduct’”.24

[107] Having carefully considered the cost memoranda filed, together with the cost decision issued, I am satisfied that Mr WO, in electing to level allegation of deliberately deceptive and fraudulent conduct on the part of Mr TJ, had breached his obligation to promote and maintain proper standards of professionalism in his dealings with Mr TJ. The making of unsupported allegation of fraudulent conduct, cannot be seen to be meeting a lawyer’s obligation to promote and maintain proper standards of professionalism in their dealings.

22 Lawyers: Conduct and Client Care Rules 2008

23 Q v Legal Complaints Review Officer [2012] NZHC 3082, [2013] NZAR 69 at [59].

24 JD v RU LCRO 55/2011 (22 March 2012) at [48]

[108] Whilst it would be understandable that Mr WO considered the claim filed by Mr TJ to be excessive, and concerned that it appeared to be the case that Mr TJ was attempting a double recovery, his concerns could and should have been reported to the court in more prudent and moderate terms.

[109] Accusation of deliberate deception and fraudulent conduct is not established simply because Mr TJ sought costs to which he was not entitled.

[110] Both require evidence of a dishonest intention.

[111] Mr WO’s allegation that Mr TJ had deliberately set out to mislead the court with fraudulent intent, made in the absence of evidence of the substance that would be required to support such serious allegation, elevates his concerns to a level of serious and unsubstantiated allegation that could not be considered reflective of a lawyer who was acting in a professional manner. Concern that a costs claim presents as excessive, or concern that a claim seeks to recover costs that have already been awarded, does not, in itself, provide justification for conclusion that the party filing the claim for costs has acted fraudulently.

[112] The importance of lawyers taking care when acting for clients to ensure that the reputation of third parties is not impugned by advancing of unsubstantiated allegation to the court, is reinforced by r 13.8.1 which directs that a lawyer must not be a party to the filing of any document in court alleging fraud, dishonesty, undue influence, duress, or other reprehensible conduct, unless the lawyer has taken appropriate steps to ensure that reasonable grounds for making the allegation exists.

[113] The fact that both Mr TJ and Mr WO were representing themselves, did not absolve either practitioner of their obligation to ensure when filing documents with, and in conducting proceedings before the court, that they conducted themselves in accordance with their obligations as officers of the court.

[114] The seriousness of the accusation that Mr WO levels at Mr TJ cannot be understated. Accusation that a lawyer has acted fraudulently or with criminal purpose is accusation at its most serious level.

[115] Practitioners who are representing themselves in proceedings before the court, can be expected to have a greater understanding than lay litigants of the obligation to ensure that if it is intended to put allegation to the court that a party has attempted to deliberately mislead the court, that such serious allegation is supported by an appropriate evidential foundation.

[116] The costs memoranda related to three interlocutory applications, and it could be expected that the exercise of calculating costs on applications of this nature, would be relatively straightforward and able to be approached in a manner consistent with well accepted principles of cost recovery. The extent to which the proceedings had become unnecessarily convoluted (responsibility for which rested with the practitioners) had clearly resulted in the court being presented with memoranda which were more comprehensive than would have been anticipated by the court.

[117] The Associate Judge’s decision to issue two cost decisions, the first of which specifically reserved the Judge’s position as to which cost items would be allowed in respect to each of the applications, gives indication that the Judge considered it likely that there would be a degree of contestability around the issue as to which work could appropriately be the subject of cost recovery. Hence the Judge’s direction that the parties filed additional submissions.

[118] Mr WO may well have formed a view that Mr TJ’s memorandum was provocative as it was clearly error riddled. But his resort to making allegations of the nature complained of, was a disproportionate and unprofessional response. Mr WO should have been able, as he was in part, to simply identify his objections without recourse to inflammatory allegation. It is that shortcoming which establishes a failure to maintain proper standards of professionalism in his dealings.

[119] A lawyer is expected to be able to present submissions to the Court in a professional manner, and in a manner which reflects an understanding of the formal requirements for filing documents with the court, an understanding of the particular characteristics and features of the document they are filing (in this case a costs memorandum) and an appreciation of their obligations as an officer of the court. Recourse to exaggerative and hyperbolic description is not excused because the comments were made in the course of proceedings where Mr WO was acting for himself.

[120] Nor is it sufficient to exculpate Mr WO from responsibility to ensure that his submissions were advanced to the court in a temperate manner, by argument that his comments were simply reflective of the ill-disciplined approach both practitioners had adopted at times when litigating their argument in the court.

[121] In reaching conclusion that Mr WO’s comments merit an unsatisfactory conduct finding, I am mindful that in the decision LCRO 193/2014, a case involving complaint that Mr WO had made almost identical attack on Mr TJ’s reputation as to those under consideration here, I had reached conclusion that Mr WO’s conduct did not require a disciplinary response.

[122] In my view, the facts of this case can be distinguished on a number of grounds, from those in LCRO 193/2014.

[123] Firstly, the complaint in LCRO 193/14, was that Mr WO had breached an undertaking provided to the court. The conduct incidents complained of in that case, had to be assessed against an examination of the undertaking provided.

[124] Secondly, in the earlier decision, I was satisfied that any objective analysis of the conduct complaints, could not ignore the context of the intensity of the personal antagonism between the practitioners and the extent to which that level of antagonism had contaminated the conduct enquiry. The history of the dispute between the practitioners does not assume such significance in this case.

[125] Thirdly, in LCRO 193/14, the conduct complaints all had their genesis in proceedings before the District Court, where the judge had made critical observation that the conduct of both practitioners had fallen well below that required of officers of the court. This was an independent assessment of the conduct of both practitioners, which had concluded that neither had been able to prevent their personal issues from compromising their duties as officers of the court.

[126] Finally, I note that Mr WO’s memorandum in the current review was filed over two years after the District Court proceedings which had prompted the severe judicial criticism of both Mr WO and Mr TJ. When submissions on costs were sought in proceedings before the Court in [Month Year], it could be reasonably expected of Mr WO that he would have taken on board the need to ensure that his communications with the court were temperate and appropriate.

[127] Having taken the factors addressed into account, it presents as concerning that Mr WO’s approach to opposing a costs memorandum, with which he disagreed, was to default to launching a serious attack on the reputation of a colleague.

[128] Having given careful consideration to the material before me, I conclude that Mr WO’s conduct is requiring of a disciplinary response.

Decision

[129] Having concluded that Mr WO’s conduct breached r 10 of the Rules, I am satisfied that a finding of unsatisfactory conduct pursuant to s 12 (c) of the Act is appropriate.25

25 Lawyers and Conveyancers Act 2006, s 12(c).

[130] I consider that the unsatisfactory conduct finding is an adequate disciplinary response in the circumstances. I do not consider that any further penalty or sanction is required.

Costs

[131] Where a finding of unsatisfactory conduct is made or upheld against a practitioner on review it is usual that a costs order will be imposed. I see no reason to depart from that principle in this case.

[132] Taking into account the Costs Guidelines of this Office, Mr WO is ordered to contribute the sum of $1,200 to the costs of the review, that sum to be paid to the New Zealand Law Society within 30 days of the date of this decision.

[133] The order for costs is made pursuant to s 210(1) of the Lawyers and Conveyancers Act 2006.

Orders

(i) Pursuant to s 211 (1)(a) of the Lawyers and Conveyancers Act 2006, the decision of the Canterbury Westland Standards Committee 1 to take no further action on the complaint is reversed.

(ii) Pursuant to s 12(c) of the Lawyers and Conveyancers Act 2006, there is a determination that Mr WO’s conduct was unsatisfactory.

(iii) The Respondent is to pay $1,200 in respect of costs incurred in conducting this review pursuant to s 210 of the Lawyers and Conveyancers Act 2006. Those costs are to be paid to the New Zealand Law Society within 30 days of the date of this decision.

(iv) Pursuant to s 215 of the Lawyers and Conveyancers Act 2006 I direct that the order for costs may be enforced in the civil jurisdiction of the District Court.

DATED this 22nd day of June 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:

Mr TJ as the Applicant

Mr WO as the Respondent [Area] Standards Committee [X] New Zealand Law Society