ND v RS [2019] NZLCRO 61 (18 April 2019)

Last Updated: 15 June 2019

	LCRO 55/2018
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	ND Applicant
AND	RS Respondent

DECISION

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

Introduction

[1] Dr ND has applied for a review of a decision by the [Area] Standards Committee

[X] (the Committee) which concluded there was no basis on which to take further action in respect of Dr ND’s complaint about Ms RS.

Background

[2] Dr ND says that when she was unable to resolve difficulties with Auckland Council (Council) and her neighbours, the [Els], over a unit title property she owned, she instructed her lawyers, [AB], to write to Council on 31 October 2014 to ask it to investigate its internal processes. That letter was sent by Ms [MI] and included the following:

... we require that an investigation be carried out to determine if there is any abuse of position by Mrs [El] in the way this matter has been handled by the Council.

... Our client requires the Council to pay compensation for her out of pocket costs, as the costs not would have been incurred [sic] if due process and proper investigation were followed and carried out by the Council, and care was taken to ensure that the correct factual and legal positions were assessed.

In our view this matter was only pursued to such extent because of Mrs [EI]’s position or her relationships with the staff at the Council.

Our client also requires confirmation there is no ethnicity prejudice and bias in the way the matter was handled by the Council and the staff that dealt with the matter.

[3] Council’s senior in-house lawyer replied to [AB]’s letter on 23 January 2015 saying:

... I apologise for the delay in being able to advise you of how we propose to progress the issues you have raised. You will appreciate that there is a need to navigate the sensitive area between assessing the allegations set out in your letter and any employment relations consideration potentially affecting relevant staff (depending on the outcome of the review discussed below). This has meant we have needed to carefully step through our internal processes.

The matters you have raised and the allegations set out in your letter are serious. In these circumstances, I have carefully considered how best to progress this matter.

I have instructed Ms RS (barrister, Wellington) to review the history of this matter and report to me. We have been actively gathering relevant background information to provide Ms RS, which she now has. We think it helpful if Ms RS deals directly with you and your client, so that your client can express views and provide information directly to the reviewer (including meeting directly with Ms RS).

I have asked Ms RS to contact you directly so that arrangements can be put in place for your client to be able to put forward any matters relevant to the review. Ms RS will also be able to talk to you about the process of the review, as it is important you and your client have confidence in the integrity of the process.

(emphasis added)

[4] Ms RS proceeded with her review on instructions from Council, interviewing Dr ND and others involved as part of her process. She then reported to Council, which authorised Ms RS to share an outline of her conclusions with Dr ND through [AB].

[5] While Ms RS considered Council’s handling of Dr ND’s request was inadequate, and Council acknowledged it could have done things better, overall Ms RS did not accept Dr ND’s criticisms of Council or Mrs [El] were valid. Ms RS did not recommend Council contribute to Dr ND’s request for reimbursement or compensation.

[6] Having asked for an inquiry, Dr ND expected Council to provide her with a complete copy of the resulting report and to allow her an opportunity to comment extensively on the report. Dr ND says on the basis of her expectations about Council’s process, she cooperated fully with Ms RS’ investigation, providing her with full

information and comment. When the investigation was complete, Dr ND received no more than an excerpt of the report and was given no meaningful opportunity to comment.

[7] Dr ND initiated proceedings against a Council employee she thought should be held responsible. In the course of that proceeding Dr ND applied for discovery orders against Council, and was successful to the extent that she obtained more of Ms RS’ report. However, the Court stopped short of requiring Council to disclose Ms RS’ advice, which was held to be privileged. That process did nothing to reassure Dr ND of Ms RS’ independence or the integrity of the independent investigation process she had carried out on Council’s instructions. Dr ND complained about Ms RS’ conduct to the New Zealand Law Society (NZLS).

Complaint

[8] Dr ND says Ms RS’:

... overall conduct was highly unethical in that she approached me dishonestly in the guise of an independent review (when in fact she had been engaged to provide legal advice to the Council) and asked me to provide documents that I would never have disclosed to the Council.

[9] Dr ND says that Ms RS misled her when she stated she was:

... independent of the Council and was dishonest in her dealing with me. I complain about Ms RS’ dishonest and unethical conduct and ask the New Zealand Law Society to take appropriate disciplinary action against Ms RS.

[10] In her complaint to NZLS, Dr ND wanted NZLS to direct Ms RS to destroy all the documents Dr ND had provided, including any copies disseminated to any third party, and to provide written confirmation she had done that.

[11] Dr ND considers disciplinary action against Ms RS is appropriate.

[12] The Committee considered Dr ND’s complaint, and directed it through the Early Intervention Process. As a consequence, Ms RS was advised the complaint had been made, offered the opportunity to respond to it and elected not to, reserving her position in the event Dr ND applied to this Office for a review.

[13] The Committee concluded there was no reason to take any further action and determined Dr ND’s complaint pursuant to s 138(2) of the Lawyers and Conveyancers Act 2006 (the Act), on the basis that further action was not necessary or appropriate.

[14] Dr ND disagreed, and applied for a review.

Review application

[15] Dr ND says the Committee erred in:

• (a) failing to consider Ms RS’ misleading conduct; and
  
• (b) taking into account irrelevant considerations in making its decision.
  

[16] Dr ND says her complaints about Ms RS’ conduct are that she:

• (a) failed to disclose to Dr ND the true nature of her engagement;
  
• (b) disclosed Dr ND’s private information to Council without Dr ND’s consent; and
  
• (c) disclosed information to Council that was privileged between Dr ND and her then lawyers.
  

[17] Dr ND provided a detailed narration of events from her perspective, and remains convinced that Ms RS’ conduct was “unethical and misleading”.

Review hearing

[18] The parties attended a review hearing in Auckland on 2 April 2019. Dr ND was represented by Ms [MI] of [AB]. Ms RS was represented by Mr [NF].

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: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

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

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: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.

[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.
  

Discussion

[22] The general thrust of Dr ND’s complaint is that the independent investigation Council instructed Ms RS to carry out did not meet with the expectations Dr ND had when she asked Council to review its internal processes.

[23] On the basis of information available to it (but not necessarily to Dr ND), Council considered an investigation was warranted, and it wanted someone independent of it to carry that out. It appears that from Council’s perspective the concerns Dr ND had expressed may have been symptomatic of difficulties with Council’s wider systems and processes. For example, Ms RS identified improvements Council could make to its LGOIMA processes in her report, and suggested those may have gone some way to assuaging the concerns articulated by Dr ND.3

[24] Quite why Dr ND expected Ms RS or Council would provide her with a full copy of the report is something of a mystery, given the letter Council’s in-house lawyer sent to [AB], dated 23 January 2015, clearly says she had instructed Ms RS to report to her. If Council had intended to conduct a public inquiry, invite feedback and publish its findings, it can reasonably be assumed that letter would have said so.

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

3 Local Government Official Information and Meetings Act 1987.

[25] There is no evidence of Ms RS ever having suggested she was acting as Dr ND’s lawyer, or that she would be providing her with legal advice or any other regulated services. It is clear from the correspondence exchanged at the time Council instructed Ms RS that she was to provide Council with regulated services. To the extent it may be relevant, it is implicit in the correspondence that Council, and not Dr ND, would pay for those services.

[26] Dr ND was represented by [AB] throughout her dealings with Council and Ms RS. It is fair to observe that if there had been some ambiguity about the independent inquiry process, or its potential legal, privacy or other implications for Dr ND, Dr ND’s interests would have been a priority for [AB], rather than Ms RS. [AB]’s involvement as Dr ND’s lawyer effectively disposes of the allegations that Ms RS misled Dr ND as to her process or the implications of it.

[27] Dr ND’s criticisms that the Committee failed to consider Ms RS’ misleading conduct and took into account irrelevant considerations in making its decision cannot be sustained. As Council’s in-house lawyer had already disclosed to Dr ND through [AB] the nature of Ms RS’ engagement, Dr ND cannot contend that Ms RS failed to disclose the true nature of her engagement. If there was ambiguity over the nature of Ms RS’ involvement and what that might mean for Dr ND, those were matters for [AB].

[28] The allegation that Ms RS disclosed Dr ND’s private information to Council without her consent is rejected. As Ms RS was acting for Council she was obliged by r 7 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 to promptly disclose all information to her client Council that she had or acquired that was relevant to the inquiry Council had engaged her to carry out.

[29] This Office cannot determine arguments over privilege in the civil jurisdiction. However, it is relevant to note that claims to privilege rely on confidentiality. Requesting an inquiry and agreeing, with the benefit of legal advice, to give evidence in that inquiry is inconsistent with an expectation that the information disclosed is confidential, or for that matter will remain private. In any event, confidentiality is an obligation owed by lawyer to client, and Dr ND was not Ms RS’ client.

[30] As Ms RS did not act for Dr ND, she owed her only very limited professional obligations. Dr ND could rightly expect Ms RS to treat her with integrity, respect and courtesy in her professional dealings. Ms[MI] acknowledged at the review hearing that Dr ND’s complaint was best articulated in terms of a professional conduct complaint as a failure to respect Dr ND’s privacy. If that is correct, then Dr ND’s first port of call should be the Office of the Privacy Commissioner.

[31] From the perspective of Council and Ms RS, Dr ND was a potential witness who, by requesting an inquiry through her lawyer, appeared to have volunteered her cooperation in that process and to have understood the consequences. The nub of Dr ND’s concern is that she over-shared information with Ms RS. In the circumstances, that does not constitute a professional conduct issue for Ms RS.

[32] Having carefully considered all of the materials available on review and listened closely to the parties at the review hearing, it is simply not possible to identify a proper basis on which to conclude that further action is necessary or appropriate with regard to any aspect of Dr ND’s complaint or Ms RS’ conduct. Consequently, the Committee’s decision is confirmed.

Decision

Pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006 the Committee’s decision is confirmed.

DATED this 18TH day of April 2019

D Thresher

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:

Dr ND as the Applicant Ms RS as the Respondent

Ms [MI] as the Representative for the Applicant Mr [NF] as the Representative for the Respondent [Area] Standards Committee [X]

New Zealand Law Society