SD v TM [2019] NZLCRO 9 (31 January 2019)

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	LCRO 74/2017
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	SD Applicant
AND	TM _Respondent

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

[1] Mr SD has applied for a review of a decision by the [Area] Standards Committee (the Committee) which made a finding of unsatisfactory conduct against Mr TM, at the relevant time a lawyer and a partner with [Law Firm], [City].

[2] In August 1996, Mr SD and his business partner, Mr RN, formed [Company] (the company) in respect of which they were both shareholders and directors.1

[3] Eighteen years later, in November 2014, Mr SD wished to leave the company. He and Mr RN proposed that he would sell his shares in the company to Mr RN.

[4] On 3 December 2014 Mr RN sent an email to Mr TM, copied to Mr SD, the company’s accountant, and a co-director, which contained an outline of the sale of shares proposal whereby the purchase price would be $435,000 “to be paid monthly over

_{3 years” commencing from January 2015; Mr SD would transfer his
shares in the}

company to Mr RN from the outset; the company would pay Mr SD’s current account to

[5] Mr SD and Mr RN met with Mr TM, at Mr TM’s office, on 8 December 2014. That day Mr TM provided them with the proposed Share Sale and Purchase Agreement (the share sale agreement).

[6] The following day, 9 December 2014, Mr SD informed Mr RN by email that he was happy with the share sale agreement apart from some minor reservations.

[7] On 15 December 2014 Mr SD, Mr RN and the company signed the share sale agreement, and the Exit Agreement (the exit agreement) which included the requirement that Mr SD’s guarantee of the company’s indebtedness to the bank would continue for a year beyond the settlement date.2

[8] Fourteen months later on 12 February 2016, Mr SD informed Mr TM that Mr RN was “either unable to, or unwilling” to pay the balance of the purchase price. Mr SD queried whether Mr TM had a conflict of interest when [Mr TM] acted for him, Mr RN, and the company on the preparation of the share sale, and exit agreements.

[9] Mr SD and Mr TM subsequently exchanged communications, and met to discuss Mr SD’s concerns but without a resolution.

[10] In his complaint lodged with the New Zealand Law Society Complaints Service (NZLS) on 6 May 2016 Mr SD claimed that, when acting for him and Mr RN on the sale of Mr SD’s shares in the company to Mr RN, Mr TM:

(b) had a conflict of interest, and relatedly had not advised Mr SD to obtain independent legal advice.

[11] Mr SD stated that the share sale agreement first, did not provide security for payment of the purchase price to him by Mr RN, and secondly, required Mr SD’s

_{continuing guarantee (and mortgage in support) of the company’s
borrowings.}

[12] He claimed compensation for the loss he said he had suffered resulting from Mr RN’s inability to pay him the balance of the purchase price, the company’s inability to pay him his current account, and his exposure under his continuing guarantee.

[13] The Committee delivered its decision on 21 March 2017 and determined, pursuant to s 152(2)(b) of the Lawyers and Conveyancers Act 2006 (the Act) that Mr TM had contravened a number of rules of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) which constituted unsatisfactory conduct.

[14] The Committee made orders of censure, a fine, costs, and directed the publication of a summary of the decision without details that might lead to the identification of any parties.

[15] The conclusion reached by the Committee was that by acting for Mr SD, Mr RN and the company, in circumstances where there was a more than a negligible risk that he may not be able to discharge his professional obligations owed to one or more of them, Mr TM had contravened r 6.1.

[16] In arriving at that position, the Committee stated that it was Mr TM’s “responsibility to ensure he could protect and promote the interests of his clients to the exclusion of third parties” (r 6).3 As directors and shareholders of the company, each of Mr SD and Mr RN “were personally interested in the transaction” under the agreements prepared by Mr TM.4

[17] The Committee stated that as “primary parties” to the agreements Mr SD’s and Mr RN’s “respective interests were different and created a conflict”, were “competing”, and “needed to be protected”.5 In addition, the respective interests of Mr SD, and the company concerning the parts of the agreements about “repayment of the current account debt the company owed to Mr SD” were also in conflict.

[18] In the Committee’s view “it was not unreasonable for Mr SD to regard Mr TM as

(a) Mr TM had acted for the company, and for each of Mr SD and Mr RN on personal matters.

(b) Mr TM’s 20 November 2014 letter of engagement addressed to Mr RN did not make it clear whether that letter “was addressed to [the company] or Mr RN personally” and did not limit the “scope” of the legal services described as “assist with restructuring matters”.

(c) Mr TM had met with Mr SD and Mr RN, sent Mr SD copies of emails addressed to Mr RN, and advised Mr SD about the treatment of GST in the share sale agreement.

[19] The Committee concluded that Mr SD was “incapable of giving informed consent for Mr TM to act for more than 1 party” because [Mr SD] had no “proper appreciation” of these “conflicts ... or their implications”.7

[20] The Committee determined that in contravention of r 7 Mr TM did not disclose to Mr SD all information in Mr TM’s possession that was “relevant to the matter”.8 The Committee found that:9

(a) The share sale agreement, which provided for a three year payment term of the purchase price by Mr RN, and the exit agreement, which “required Mr SD’s personal guarantee and ...mortgage to the bank to support [the company] borrowings” for a year beyond Mr SD’s departure from the company, ought to have raised doubts for Mr TM about the financial positions of the company and Mr RN, and the prospect of default by Mr RN.

(b) Mr TM did not advise Mr SD about these issues “or the need to include provisions in the agreement that might provide [Mr SD] with some protection”.

[21] The Committee decided that by using the company’s confidential information for

[22] The Committee explained that when acting for the company, Mr TM was instructed by Mr RN. Information that would have been important for Mr SD to have received at that time was that if Mr SD, as proposed, and subsequently agreed, was to transfer his shares to Mr RN before Mr RN had paid for them, Mr SD would be an unsecured creditor of Mr RN, and of the company in respect of Mr SD’s current account in the event of default by Mr RN, or the company. Meanwhile, Mr SD would still be a guarantor to the bank.

[23] That information, confidential to the company, was ultimately used “for the

[24] Also, by acting for Mr RN and the company on one side of the transaction, against Mr SD on the other side, thereby undermining the fiduciary obligation owed to Mr SD, Mr TM had contravened r 8.7.1(d).

[25] In his application for a review, filed with this Office on 5 April 2017, Mr SD seeks a reconsideration of the Committee’s decision:

(c) that [the Committee’s decision] remain confidential between the parties thereby preventing Mr SD using the Committee’s findings in relation to any remedy he may wish to exercise against Mr TM.

[26] In reply to Mr TM’s response, referred to below, he says he “had not applied to review the fine ordered by the [Committee] of $3,000” because he “was not aware” of the maximum fine provided for in the Act of $15,000.

[27] He also asks why it took the Committee “almost a year”, commencing from the date he lodged his complaint with the Lawyers Complaints Service, to consider and reach a decision about his complaint.

[28] In response, Ms QW, counsel for Mr TM, submits in her letter to this Office dated

[29] For reasons discussed in more detail in my analysis, Ms QW submits that because the Committee heard (on the papers) Mr SD’s complaint in private, publication of Mr TM’s name is not warranted because it is neither in the public interest, nor required to maintain public confidence in the provision of legal services.

[30] Ms QW submits that publication of Mr TM’s name would harm his “reputation”, and potentially “his practice and that of [the] firm”. In addition, the fine ordered by the Committee was at the lower end of the permissible range which “demonstrates that the

[31] Ms QW restates Mr TM’s submissions to the Committee which, in essence, were that “there was no evidential basis on which the Committee could conclude that Mr SD had proved causation and/or the quantum of any loss allegedly suffered” by him.

[32] Concerning Mr SD’s desire to make use of the Committee’s decision in the exercise of any remedy available to him against Mr TM, Ms QW submits that Mr SD “should seek advice from a legal practitioner as to the manner and extent to which” the Committee’s decision “may be relevant in any later action, whether for alleged breach of retainer and/or negligence”.

[33] Ms QW submits it is the Committee’s responsibility to respond to this aspect of

[34] The parties have agreed to the review being dealt with on the papers. This review has been undertaken on the papers pursuant to s 206(2) of the Act, which allows a Legal Complaints Review Officer (LCRO) to conduct the review on the basis of all

information available if the LCRO considers that the review can be adequately determined in the absence of the parties.

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

[36] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:11

... 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.

[37] More recently, the High Court has described a review by this Office in the following way:12

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.

[38] Given those directions, the approach on this review, based on my own view of the fairness of the substance and process of the Committee’s determination, has been

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

[39] The issues I have identified for consideration on this review are: (a) Is the fine of $3,000 ordered by the Committee appropriate?

(d) Is Mr SD able to use the Committee’s decision in support of the exercise of any remedy he may have, and bring against Mr TM?

(e) To whom ought Mr SD address his concerns in respect of the time taken by the Committee to issue its decision?

[40] Although Mr TM has not applied for a review of the Committee’s findings against Mr SD, some comment on those findings and relevant rules is appropriate to provide context for consideration of the orders made by the Committee which comprise the subject matter of this review.

[41] The obligations and duties required of lawyers by the Act, and the Rules are to ensure that their clients’ interests are not compromised.

[42] Consistent with the consumer purposes of the Act, s 4(c) requires that every lawyer who provides regulated services must comply with fundamental obligations,

which include the obligation to protect, subject to the lawyer’s overriding duties as an officer of the Court, the interests of his or her clients.13

[43] If acting for more than one client a lawyer runs the risk, to a greater or lesser degree, of owing conflicting duties to the clients. For example, while a lawyer has the duty to keep each client’s information confidential,14 the lawyer also owes the duty to disclose to each client all information that is relevant to the matter in respect of which the lawyer is engaged.15

[44] The Rules prescribe the actions or steps that a lawyer, who is requested to act or is proposing to act for more than one client on a matter, must take. These actions or steps are based on the principle described as “an obligation of the lawyer to avoid any situation in which the duties of the lawyer owed to different clients conflict”.16

[45] To that end, r 6.1 prohibits a lawyer from acting for more than one client in circumstances “where there is a more than negligible risk that the lawyer may be unable to discharge the obligations owed to one or more of the clients”.

[46] The threshold a “negligible risk” is very low and is described in a decision of this Office as circumstances where there is “no meaningful risk that the obligations to the parties would not be able to be fulfilled”. Conversely, “a more than negligible risk” is “a real risk of an actual conflict of interest”.17

[47] In circumstances where a lawyer determines that the prohibition in r 6.1 does not apply, r 6.1.1 requires that before the lawyer is permitted to act “the prior informed consent of all parties concerned [must be] obtained”.

consent given by the client after the matter in respect of which the consent is sought and the material risks of and alternatives to the proposed course of action have been explained to the client and the lawyer believes, on reasonable grounds, that the client understands the issues involved.

13 Lawyers and Conveyancers Act 2006, s 3(1) — purposes of the Act; Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 6 carries forward the fundamental obligation in s 4(c) of the Act.

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

17 Sandy v Kahn LCRO 181/2009 (9 December 2009) at [27], [36]. In this context, the word “negligible”, which is not defined in either the Act or the conduct rules means, “unworthy of notice or regard; so small or insignificant as to be ignorable” Oxford English Dictionary <www.oed.com>.

[49] A client who gives “informed consent” must do so without influence, and be independent from the other clients.18 These rules still apply where different lawyers in a firm act for different parties in a matter or a transaction.19 Moreover, “[a]n information barrier within a practice does not affect the application of, nor the obligation to comply with, rr 6.1 or 6.2”.20

(a) the respective interests of Mr SD, as vendor, of his shares in the company to Mr RN, as purchaser, were “competing”, and “needed to be protected”;21

(b) it was “not unreasonable” for Mr SD to regard Mr TM as acting for all parties to the share sale, and exit agreements;22 and

(c) Mr SD was incapable of giving his “informed consent” for Mr TM to act for Mr SD, Mr RN, and the company because [Mr SD] did not have “a proper appreciation of the conflicts”.23

[51] To assist in determining whether or not a conflict of duty exists, or is likely to arise in a particular situation, a distinction is frequently drawn between contentious and non-contentious matters. In the latter category, where the parties:24

are negotiating and significant terms remain to be resolved, it would be more or less impossible for a lawyer to act for both parties ... an advantage acquired by one client will often result in a detriment to the other.

[52] The responsibility for making that determination rests with the lawyer concerned, and not with the client.25

[53] Circumstances in which the lawyer concerned has been held to have contravened r 6.1 in a commercial or business context, include two lawyers in one firm where one lawyer acted for the vendor, and the other lawyer acted for the purchaser on

18 At [41]. For evidentiary purposes, it is sensible that the lawyer records the client’s informed

19 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules, r 6.2.

the sale of a business in circumstances where important terms were yet to be agreed between the parties.26

[54] In another example, one lawyer in a firm acted for two shareholders who, together with their respective family interests held equal shares in two companies, where one shareholder wished to sell his shares to the other. The lawyer had commenced working for both shareholders on the terms of an agreement, yet to be worked out, to document a proposal suggested by the lawyer where the shareholders needed time to reflect on the proposal and to obtain independent advice to do so.27

[55] In the decision of the High Court referred to above, one partner in a business wished to sell his interest in the partnership to his other business partner. The Court held that the lawyer concerned should not have acted for both parties where the terms of sale were not yet agreed, and the lawyer had not advised them to take independent advice. Moreover, the appellant (partner), as the Committee found with Mr SD, had not appreciated that there was a conflict.28

[56] Mr TM contended that he acted for the company which had instructed him to draft an agreement the terms of which had been agreed by Mr SD and Mr RN. In effect, he argued his retainer did not require him to advise them on the meaning and effect of their proposal.

[57] However, this was a matter where the parties, whose interests were in competition to each other, need to be informed by Mr TM that (a) there was “a more than negligible risk” [Mr TM] would not be able to discharge his professional obligations owed to one or both of them, and (b) in such circumstances, [Mr TM] was prohibited by the rule from acting for them both and that they must be separately represented.

[58] Under rr 7, and 7.1, a lawyer must disclose to his or her client information that is relevant to the retainer, take reasonable steps to ensure that the client understands the nature of the retainer, keep the client informed about progress, and consult the client

29 See Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules, r 1.6 which prescribes how a lawyer must convey information the Rules require a lawyer “to provide to a client” — see discussion in Sandy v Kahn above n 17 at [38].

[59] A lawyer’s duty to protect and hold in strict confidence all information concerning the client, the retainer and the client’s business and affairs acquired in the course of the professional relationship outlives the lawyer-client relationship.30

[60] The duty also extends to former clients. Rule 8.7 provides that “[a] lawyer must not use information that is confidential to a client (including a former client) for the benefit of any other person or of the lawyer”.

A lawyer must not act against a former client of the lawyer or of any other member of their practice where –

(a) the practice or a lawyer in the practice holds information confidential to the former client; and

(b) disclosure of the confidential information would be likely to affect the interests of the former client adversely; and

[62] For the prohibition in r 8.7.1 to apply, the circumstances described in paragraphs (a) to (d) of the rule must all be present.31

[63] The tension between a lawyer’s professional duty to keep a client informed, and the duty to keep a client’s information confidential, serves to illustrate the dilemma for a lawyer who acts for more than one client on a matter when prohibited by r 6.1 from doing so.

[64] This is the position in which Mr TM found himself. On the one hand, he owed Mr SD a duty to explain to him the meaning and effect of Mr SD’s and Mr RN’s proposal which [Mr TM] drew up. In particular, the risk to Mr SD if he was to transfer his shares in the company to Mr RN before Mr RN had paid the purchase price, the corresponding ability of the company to repay Mr SD’s current account, and the likelihood or otherwise

[65] That duty conflicted with Mr TM’s duty owed to Mr RN, and the company, to keep that information about them, of which Mr SD may have been unaware, confidential and not disclose such information to Mr SD.

[66] In addition to finding that Mr TM, by using the company’s confidential information for Mr RN’s benefit, had contravened r 8.7, the Committee also found that by acting for Mr RN and the company against Mr SD, in contravention of r 8.7.1(d), Mr TM had also undermined the fiduciary duty he owed Mr SD.

[67] As noted above, r 8.7.1 prohibits a lawyer from acting against a former client in circumstances where the four criteria described in paragraphs (a) to (d) of that rule exist. However, Mr TM, when practising at his previous firm acted for Mr SD personally, and, as found by the Committee, acted for him on the sale of his shares in the company to Mr RN. In such circumstances I consider it doubtful Mr SD would be categorised as “a former client” of Mr TM. For that reason, on balance, it is my view that r 8.7.1 did not apply.

[68] Mr SD’s question about the time it took the Committee to consider and determine his complaint does not concern the Committee’s decision, but is a matter for him to raise with the Lawyers Complaints Service.

[69] I do observe, however, that the 10 months which elapsed between the date Mr SD made his complaint, and the date of the Committee’s decision is one month longer than the time published by the Law Society “for closure” of 85 per cent of complaints made to the Lawyers Complaints Service.32

[70] As discussed below, subject to any direction to publish a Committee (or this

Office, on review) may make, the Committee’s decision “must remain confidential”.33

[71] As noted at the outset, the orders made by the Committee were that Mr TM be censured, fined $3,000, and pay costs of $2,000. The Committee also directed the

32 New Zealand Law Society “Report on Regulatory Activities for the year to 30 June 2017” at 17

33 Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, reg 31.

“publication of a summary of the facts, outcome and orders ... but not any details that might lead to the identification of any parties”.

[72] Section 156 of the Act includes among the orders a Standards Committee, having made a finding of unsatisfactory conduct, can make. Some are in the nature of penalty. The functions of penalty in the disciplinary context have been described by the Court of Appeal as:34

[73] The starting points for penalty are the gravity of the conduct and culpability of the lawyer concerned, with the various mitigating and aggravating features being taken into account when fixing penalty. Acknowledgement by the lawyer of error, and acceptance of responsibility are matters for mitigation.

[74] Under s156(1)(b), an order “censuring or reprimanding” a lawyer can be made.35

[75] The Court of Appeal has described “censure” and “reprimand” as “synonymous”. Both are “likely to be of particular significance” in the context of the Act. This is:36

because it will be taken into account in the event of a further complaint against the practitioner in respect of his or her ongoing conduct ... and will inevitably be taken seriously.

[76] Regulatory recognition of the significance of a censure order is to be found in reg 30(1) of the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008 (the Regulations). This provides that:

34 Wislang v Medical Council of New Zealand [2002] NZCA 39; [2002] NZAR 573 (CA) at [21]. See also Sisson v Standards Committee (2) of the Canterbury-Westland Branch of the New Zealand Law Society [2013] NZHC 349, [2013] NZAR 416. See also s 3 of the Act — the consumer protection purposes.

if a Standard Committee makes a censure order ... the Committee may, with the prior approval of the Board, direct publication of the identity of the [lawyer] who is the subject of the censure order.

[78] This Office has stated that in cases where unsatisfactory conduct is found as a result of a breach of applicable rules (whether the Rules, regulations or the Act) and a fine is appropriate, a fine of $1,000 would be a proper starting place in the absence of other factors.38

[79] The Committee did not state it’s reasons for setting the fine at $3,000. However, taking into account the maximum possible fine of $15,000, the fact that, coupled with the censure order, the Committee ordered a fine of $3,000, suggests that the Committee regarded the contraventions as relatively serious, but not so serious as to warrant the imposition of a greater fine.

[80] It is worthy to note that Standards Committees are made up of practising lawyers, familiar with all aspects of the practice of law, as well as lawyers’ duties and obligations, and the time pressures and constraints under which lawyers often find themselves. Standards Committees must also include a lay member. This format allows for a range of views — legal and non-legal — to be considered. The process is flexible and robust.

[81] Looking at Mr TM’s contraventions overall, I am not persuaded by Mr SD to interfere with the fine of $3,000 ordered by the Committee.

[82] Mr SD seeks from Mr TM compensation for the unpaid portion of the purchase price for the shares, $374,583, payments outstanding on his current account, $70,000, and his exposure to the bank under his guarantee, $115,000.

Where it appears to the Standards Committee that any person has suffered loss by reason of any act or omission of a practitioner ... [it may] order the practitioner

39 Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, reg 32.

... to pay to that person such sum by way of compensation as is specified in the

[84] The section provides that the person who seeks compensation must have “suffered loss by reason of any act or omission of [the lawyer]”. There must be a clear “causative link” between Mr TM’s conduct and the loss claimed by Mr SD.

[85] In the particular circumstances, Mr TM was prohibited by r 6.1 from acting for

Mr SD, Mr RN and the company in respect of the sale of Mr SD’s shares to Mr RN.

[86] However, it is speculative to assume that had Mr SD obtained independent legal advice he would not have proceeded with the sale of the shares to Mr RN on terms different to those proposed in Mr RN’s 3 December 2014 email to Mr TM which Mr TM incorporated into the share sale, and exit agreements.

[87] Such an assumption is with the benefit of hindsight, and is not evidence of a

clear “causative link” between Mr TM’s conduct and the loss claimed by Mr SD.

[88] For these reasons, I do not consider it is appropriate that Mr SD be compensated by an order under s 156(1)(d). In arriving at this view, I make the observation that such matters are best determined by the Courts in respect of any claim in negligence brought by a client against his or her lawyer where witnesses can be tested by cross examination.

[89] Under s 142(1), Standards Committees are required to “exercise and perform [their] duties, powers, and functions in a way that is consistent with the rules of natural justice”.

[90] Subject to that requirement s 142(2) authorises a Committee to “direct such publication of its decisions” as the Committee “considers necessary or desirable in the public interest” under ss 138 (decision to take no action, or no further action on a complaint), 152 (determinations that may be made in respect of a complaint or matter),

156 (orders that may be made following a determination of unsatisfactory conduct), and

[91] For that purpose, s 131 requires that the rules “governing the operation” of Standards Committees “must include ... (f) rules specifying the circumstances in which the ... Law Society ...may publish the identity of a person who has been censured by a

[92] As noted above, under reg 30(1) of the Regulations, a Committee which has made a censure order against a lawyer and wishes to publish both the Committee’s decision and the lawyer’s identity must first obtain “the prior approval of the Board” of the Law Society.40

[93] Regulation 30(2) requires that a Committee, “[w]hen deciding whether to publish the identity” of a lawyer who has been censured “must take into account the public interest and, if appropriate, the impact of publication on the interests and privacy of – (a) the complainant; and (b) the clients of the censured [lawyer]; and (c) relatives of the censured [lawyer]; and (d) partners, employers and associates of the censured [lawyer]; and (e) the censured [lawyer]”.

[94] Under reg 31, if a Committee does not make a direction to publish under s 142(2), or reg 30(1) then the Committee’s decision “must remain confidential”.

[95] On review, under s 206(3) a Review Officer similarly “must perform his or her functions and duties and exercise his or her powers in a way that is consistent with the rules of natural justice”. A Review Officer “may” also, under s 206(4), “direct such publication of ... decisions ... consider[ed] necessary or desirable in the public interest”. This is subject to the “Act, any rules made under [the] Act, and any practice notes issued under [s] 215A”.41

[96] The Guidelines for Parties to Review for this Office state that decisions from this Office “may be published if it is in the public interest”. Decisions considered by the relevant Review Officer to be of public interest, which include guidance and assistance for lawyers, are regularly published but with “identifying details removed”.42

[97] The Guidelines explain that “[i]n general ... the names of lawyers” against whom a finding “of unsatisfactory conduct for the first time” has been made “will not be published”. Only where the Review Officer “considers that the [lawyer’s] conduct has shown a culpable disregard of the relevant rules or the obligations owed to a client or there has been a severe departure from acceptable standards” will a publication order be made, and only after the lawyer concerned “has first had an opportunity to make submissions on the matter of publication”.

40 Contrast the position with the Lawyers and Conveyancers Disciplinary Tribunal whose hearings are held in public (s 238(1) of the Act) unless the Disciplinary Tribunal "having regard to the interest of any person (including (without limitation) the privacy of the complainant (if any)) and to the public interest", in which case the Tribunal "may hold a hearing or part of a hearing in private" (subss (2), (3)). The Tribunal may also impose restrictions on publication of its proceedings: s 240.

[98] If a Committee has ordered publication of a lawyer’s name, then the Review

[99] In summary, publication of the name of a lawyer against whom a finding of unsatisfactory conduct has been made is not so much to punish the lawyer but, taking into account the consumer purposes of the Act, to afford protection to the public where considered necessary.

[100] The Committee ordered publication of its decision without “details that might

[101] Ms QW submits that Mr TM “has not previously been found to have breached professional standards” during “almost 30 years of practice”.

[102] Taking that into account, a direction of publication of an anonymised summary of the Committee’s decision would be consistent with the approach taken by this Office not to publish the names of a lawyer (a) against whom a finding of unsatisfactory conduct has been made for the first time, and (b) where the lawyer’s contravention of the Rules, whilst attracting that finding, was not so “culpable” as to warrant greater condemnation by publication of the lawyer’s name.

(a) the Committee’s findings that Mr TM contravened rr 6.1, 7, and 8.7 are confirmed; and

(b) the Committee’s determination that those contraventions constitute unsatisfactory conduct is confirmed, but is modified to provide that the determination is made under s152(2)(b), and that such contraventions constitute unsatisfactory conduct under s 12(c) of the Act.43

[104] Pursuant to s 211(1) of the Act the Committee’s finding that Mr TM contravened r 8.7.1(d) is reversed.

(c) pay the costs and expenses of and incidental to the inquiry made and the hearing conducted by the Committee in the sum of $2,000.00 is confirmed (s156(1)(n)).

[106] Mr TM is ordered to pay the fine, and costs ordered by the Committee to the

[107] I have dealt with the Committee’s order in paragraph 27(a) of the Committee’s

[108] Pursuant to s 211(1) of the Act the Committee’s direction under the heading Publication, namely, that “a summary of the facts, outcome and orders of the matter as the New Zealand Law Society deems appropriate” be published, “but not any details that might lead to the identification” of Mr TM or any of the other parties involved is confirmed.

[109] Pursuant to s 206(4) this decision is to be made available to the public with the names and identifying details of the parties removed.

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

New Zealand Legal Complaints Review Officer

SD v TM [2019] NZLCRO 9 (31 January 2019)