CH v DS [2019] NZLCRO 23 (7 March 2019)

Last Updated: 30 March 2019

	LCRO 277/2016
CONCERNING	an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING	a determination of [Area] Standards Committee
BETWEEN	CH Applicant
AND	DS Respondent

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

DECISION

Introduction

[1] CH has applied for a review of the determination by [Area] Standards Committee to take no further action in respect of his complaints about DS.

Background

[2] CH’s wife instructed DS with regard to separation and relationship property matters. On 26 January 2016 DS sent a letter to CH in which she said:

VN’s initial instructions to me were that you were in the family home and had changed the locks in the home so that that property is no longer accessible to VN. I understand that that is not correct from your perspective and I acknowledge your advice that VN can still access the family home. However, recently when VN needed to obtain a few items of her own property from the home she had to break a window in order to enter the property. VN was very anxious about having to do this and what may be your likely reaction based on how you have behaved towards her during your relationship. I appreciate your recent advice to me that you do not intend to do this now.

[3] Subsequently, VN applied for, and was granted, a temporary Protection Order against CH. On 19 April 2016 DS referred to the Protection Order in a proposal sent to CH’s lawyer (HM) to resolve relationship property matters. She said:

... if your client agrees to settle on this basis, and on an entirely without prejudice basis my client will agree to apply to discharge the Protection Order made on 12 February 2016. My client does want to resolve matters so that both she and CH can move forward with their lives.

(emphasis added)

CH’s complaints

[4] CH’s complaint was lodged on 4 April 2016. He said he had never spoken to or met DS and interpreted the sentence in her letter of 26 January 2016 as being “tantamount to [him] making an admission that [his] behaviour need[ed] to be changed”. He considered this would prejudice him in court proceedings which he intended to file.

[5] CH extended the grounds of his complaint following DS’s response to the complaint. By that time DS had made the proposal referred to in [3] above. CH’s additional complaint was that the Protection Order was being used to extract agreement to the property relationship issues. He said:

A ‘protection order’ is a powerful legal instrument and should not be conditional on ‘money.

The Standards Committee determination

The letter of 26 January 2016

[6] The Committee considered whether DS had breached professional obligations when making the statement complained about by CH, and took note of the following obligations of a lawyer:1

• (a) to facilitate the administration of justice and not mislead the court or to act in a way that undermines its processes; (2,13.1,13.2)
  
• (b) to use legal processes for proper purposes; (2.3)
  
• (c) to maintain her independence at all times and to act competently; (3,13.5)
  
• (d) to promote and maintain proper standards of professionalism; (10)
  

1 Numbers in brackets are to Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.

(e) to not to attack a person’s reputation without good cause or reasonable grounds; (13.8,13.8.1,13.8.2)

(f) when aware that a person is self-represented, to normally inform the person of their right to take legal advice. (12.1)

[7] The Committee said:2

The Standards Committee was satisfied that, when read in context, the content of the letter was entirely appropriate. DS was making reference to the issues that had arisen between the couple with regards to one of their properties, including VN’s access and use of the property. CH had provided confirmation via email that he did not intend to restrict VN’s access to the property. This was acknowledged and the comments did not carry the connotation CH had attributed to them. It was also the case that should CH be concerned that the letter may be used to form an adverse view of his conduct, he can address this through the ongoing proceedings.

[8] The Committee determined to take no further action in respect of this complaint.

The settlement proposal

[9] In considering CH’s complaint that DS was using the Protection Order to “trade in exchange for money” the Committee had regard to the provisions of r 2.3 of the Conduct and Client Care Rules which reads:

2.3 A lawyer must use legal processes only for proper purposes. A lawyer must not use, or knowingly assist in using, the law or legal processes for the purpose of causing unnecessary embarrassment, distress, or inconvenience to another person’s reputation, interests, or occupation.

[10] The Committee determined that any challenge to the granting, or ongoing application of, the Protection Order was a matter to be addressed in court. The Committee:3

... therefore focused on whether DS had sought to use and maintain the protection order for a secondary or ulterior purpose, namely, as leverage in settlement negotiations.

2 Standards Committee determination, 16 November 2016 at [9].

3 At [17].

[11] It determined:4

... whilst it would undoubtedly have been preferable for DS to have kept the settlement discussions entirely separate from matters relating to the Protection Order, DS did not breach her professional obligations by failing to do so.

[12] In reaching this view the Committee acknowledged that while:5

... DS’s letter had left it open for CH to form the impression the Protection Order could be traded for his agreement to VN’s terms, including the financial elements of the offer ... it accepted DS’s explanation that this was not the intention of the settlement offer and that there was no secondary or ulterior purpose for maintaining the Protection Order or for her decision to make reference to it in the settlement offer.

The application for review

[13] CH’s application for Review was accompanied by 22 pages of supporting reasons. These included:

• “the statement made suggesting that [CH’s] own lawyer “signalled” a “global deal” is not a true statement”. CH had instructed his lawyer to keep matters separate.
  
• “DS tried to leverage an extra payment of $75,000 (which she referred to as a lump-sum spousal maintenance payment.)”.
  
• “The key word in [DS’s letter] is the word “if” which makes it an entirely conditional offer”.
  
• He takes issue with the Committee describing the wording used by DS as “clumsy”.
  
• CH’s prime objective was to “clear [his] name” of the matters VN had deposed to in the application for the Protection Order.
  

[14] The outcome sought by CH is:

I request that DS receive some sort of censure or some sort of warning that she needs to reflect and adjust her practice methods back into line with the standards and code of ethics the public of New Zealand would normally expect from a professional lawyer. I request that she reflect on this and try to keep her emotions, preconceived images and assumptions properly separated from her application of the law and the Justice system.

4 At [18].

5 At [19].

Review

A ‘global deal’

[15] In a letter to the Complaints Service, DS advised that her client wanted all matters between her and her husband to be resolved. CH was concerned that the Protection Order had been applied for (and granted). It would need to be discharged if all matters were to be resolved.

[16] On 8 March 2016 DS had written to CH’s lawyer (HM), saying:

My client feels that your client would benefit from attending a [non-violence] programme. If he was to agree to a programme and completed one then my client would feel greatly assured and would be prepared to consider the Discharge of the Protection Order so long as CH continued to keep his distance from her.

[17] She went on to discuss other relationship property matters.

[18] HM responded on 1 April 2016. The first item in his letter referred to the Protection Order. He said:

CH is adamant that he does not need to attend a non-violence program...[and] refutes what VN has alleged in her affidavit....

[19] HM advised that he would:

shortly be filing [a] detailed response and seeking a formal hearing in the Family Court so that CH can be heard on the issue of the existing temporary Protection Order.

[20] It is clear from the comments by HM that for there to be a resolution of all matters it would be necessary to address the continued existence or otherwise of the Protection Order to enable both parties to “move forward with [their] lives”.

[21] In a letter to HM on 19 April 2016, DS put forward a comprehensive proposal which addressed all matters relating to relationship property. She concluded her letter with the statement which CH has complained about. She said:

Finally, if your client agrees to settle on this basis, and on an entirely without prejudice basis, my client will agree to apply to discharge the Protection Order

made on 12 February 2016. My client does want to resolve matters so that both she and CH can move forward with their lives.

[22] CH has associated the suggestion that VN would apply to have the Protection Order discharged with one aspect of the proposal, namely, the monetary payments to be made by CH as proposed in the letter.

[23] It is difficult to accept this somewhat singular view of the content of the letter. The letter contained a comprehensive proposal addressing all matters at issue between the parties, and this included the Protection Order.

[24] Having considered all aspects of the issue, it would be unfair to DS if an adverse disciplinary finding were to be made against her on the basis of this aspect of CH’s complaint which rests on CH’s perspective of the letter.

[25] The determination of the Committee to take no further action on this issue is confirmed.

The letter of 26 January 2016

[26] CH has complained about the words in the middle of a lengthy paragraph in the four-page letter from DS to him in which she says:

I appreciate your recent advice to me that you do not intend to do this now.

[27] Prior to this sentence DS had been referring to a situation where VN had been obliged to break a window to obtain access to the family home when she wanted to “obtain a few items of her own property”. She said:

VN was very anxious about having to do this and what may be your likely reaction based on how you have behaved towards her during your relationship.

[28] She continued with the sentence CH has complained about.

[29] CH advised that he had never met or spoken to DS and that if he accepted those words it was “tantamount to [him] making an admission that [his] behaviour needs to be changed”. CH’s concern provided the basis for his complaint.

[30] DS acknowledges that she had never met or spoken to CH. In her letter in response to the complaint, she explains that what she was referring to was CH’s previous exclusion of her client from the family home. She says:

Having read the letter and the sentence that has caused CH so much angst, it would seem that some text was removed on correction which has resulted in some ambiguity in the text.

[31] The sentence CH complains about does seem to be misplaced and it is not readily (if at all) comprehensible. CH’s complaint about this sentence was that, having engaged with DS in good faith, the letter had then been sent to VN and other family members, and the sentence implied he had agreed he needed to change his behaviour.

[32] He said:6

This situation has caused and continues to cause me considerable anxiety, and the stress it adds of being impaired by the mental anguish at this very difficult time. This is particularly pronouns now because I realise that it is likely prejudice (by undermining) my submissions that is about to be filed with the family court. My submissions and filings to the court are to be put on hold until this matter has been addressed.

[33] In an email to DS, CH said:

... the allegations it contains are unfounded and I reluctantly feel I need to find a way to try and protect myself from the innuendos of violent behaviour and attacks on my reputation, regarding such non-truth.

[34] Amongst other requests for a response from her to matters raised by him CH asked DS to explain the statement. DS acknowledges she did not directly respond to that request as other significant matters raised by CH required to be addressed.7

[35] She says:

I did not respond, apart from my legal executive acknowledging receipt of his emails because I did not understand exactly what he was trying to say and what he wanted from me. I forwarded CH’s emails to VN...and was instructed to prepare a further letter with a settlement proposal.

[36] CH complains that the letter could affect the view of the Judge hearing the proceedings, but it was CH himself who put the letter into evidence. In any event, a Judge would not be influenced by unsupported allegations.

[37] The sentence CH objects to is incidental to the substantive issues raised in the letter. It does not contain a specific allegation against CH and it is the interpretation that he has placed upon it that forms the basis of his complaint.

6 Reproduced as per letter of complaint.

7 VN had not at that stage engaged HM.

[38] Rule 2.3 refers to a lawyer using:

the law or legal processes for the purpose of causing unnecessary embarrassment, distress, or inconvenience to another person’s reputation, interests, or occupation.

[39] The footnote to the rule provides examples of what a breach of the rule might include:

... issuing a statutory demand under the Companies Act 1993, knowing that (or failing to make inquiries whether) the debt is bona fide disputed; registering a caveat on a title to land knowing that (or failing to inquire whether) there is a “caveatable interest” on the part of the client to be protected; and serving documents in a way that causes unnecessary embarrassment or damage to the person’s reputation, interests, or occupation.

[40] In the first instance, DS’s letter could not in itself, be considered to constitute a “use of the law or legal processes”. In addition, the letter does not approach the nature of the examples referred to in the footnote.

[41] The Committee “was satisfied that, when read in context, the content of the letter was entirely appropriate”.8 Whilst I would not necessarily use the same wording as the Committee, the determination to take no further action is the appropriate outcome with regard to this aspect of the complaint.

Decision

Having considered all of the material provided by the parties in relation to the initial complaint and on review, the determination of the Standards Committee to take no further action in respect of CH’s complaints is confirmed.

DATED this 7th day of March 2019

D Thresher

Legal Complaints Review Officer

8 Standards Committee determination, above n 2, at [9].

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

CH as the Applicant DS as the Respondent

NH as a Related Person [Area] Standards Committee New Zealand Law Society