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New Zealand Legal Complaints Review Officer |
Last Updated: 10 December 2024
LEGAL COMPLAINTS REVIEW OFFICER
ĀPIHA AROTAKE AMUAMU Ā-TURE
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Ref: LCRO 8/2022B
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CONCERNING
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an application for review pursuant to section 193 of the Lawyers and
Conveyancers Act 2006
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AND
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CONCERNING
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a determination of the [Area] Standards Committee
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BETWEEN
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QQ
Applicant
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AND
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LW
Respondent
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The names and identifying details of the parties in this decision have
been changed
[1] Mr QQ has applied for a review of the determination by [Area] Standards Committee in which the Committee made a finding of unsatisfactory conduct against Mr QQ and imposed orders.
[2] As the conduct which Mr LW complained about occurred in December 2020, all references to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) are to the rules in existence prior to the reprint as at 1 July 2021.
Background
[3] Mr LW acted for Mr FM and FM Trustee Limited in the matter of an application under the Companies Act 1993, s 174 (the s 174 proceedings).
[4] Mr QQ acted for the first and second defendants.1
[5] On 21 August 2020, Judge V issued a judgment in respect of two interlocutory applications made by the defendants. These were summarised by His Honour as:2
- [1] The second defendants seek that the plaintiffs' claims be stayed on the basis that they have been assigned to Company A Limited (CAL) which both funds and controls the litigation. They say that the cause of action is personal and that no such assignment could take place unless CAL had a legitimate and genuine interest in the subject matter, which it does not.
- [2] As an alternative and on the assumption that its application for stay is unsuccessful, the second defendants seek an order that CAL provide security for their costs.
[6] His Honour dismissed both applications.
[7] Mr FM was involved in two other matters involving Mr QQ’s clients. Mr FM was self-represented in one of those matters, and was represented by Mr BP in respect of the second matter.
[8] On 2 December 2020, Mr QQ wrote to Mr FM at a residential address, and copied the letter to Mr LW, and (Law firm), who had acted for Mr FM previously. The letter touched on the matter in which Mr FM was self-represented but the major part of the letter related to the s 174 proceedings.
[9] The content of the letter will be discussed as necessary in the following paragraphs of this decision.
Mr LW’ complaints
[10] Mr LW’ complaints were brief. I set these out here in full:3
Breach of Rule 10.2 – Lawyer contacted my client directly about the case I represented him in (s 174 proceedings).
By letter dated 2 December 2020 the lawyer wrote to my client regarding another matter the client was self represented in. However the majority of the letter denigrated the s 174 proceeding I represent the client in and sought to settle the matter.
Note: BP represented the client in a third proceeding (liquidation) CAL referred to in the letter related to the s 174 proceeding.
Breach of rule 11.1 – Misleading statements
In an interlocutory application the lawyer submitted s 174 was inapplicable. Judge V answered that submission at [48] of his decision dated 21 August 2020 by stating s 174 had broad application. The lawyer stated in his letter (bottom of first page) that the proceeding will be struck out. He knew that to be false
1 The first defendant was Company B Limited, the second defendants were Mr and Mrs GA.
3 Complaint Form (5 February 2021) Step 5.
because of Judge V decision. The statement was both inconsistent with the Justices’ conclusion but also disrespectful of the court.
Mr QQ’s response
[11] Mr QQ responded to the complaints on 12 February 2021. He clarified the nature of the three proceedings involving his clients, in which Mr FM was a party, one of which was awaiting the outcome of the s 174 proceedings.
[12] Mr QQ explained that he had previously conducted correspondence with (Law firm) who were acting for Mr FM at the time, but advised that he had not received any correspondence from that firm since 20 December 2019. He says:4
In short, I do not know if (Law firm) still act for Mr FM on the wider matters that were the subject of the negotiations terminated in November 2019 referred to at the bottom of page 2 of my letter of 2 December 2020. That notwithstanding, (Law firm) were copied with my letter the purpose of which was to reactivate those negotiations.
[13] Mr QQ explained further:
Accordingly, the opening part of my letter addressed matters upon which Mr FM is definitely self-represented and the concluding parts deal with matters upon which it is likely that he is self-represented. He periodically copies communications to me that go beyond the set limits of the proceeding in the [Suburb] District Court. In any case, the lawyers that may still be acting for him in respect of those background matters were copied with the letter in question.
[14] Mr QQ acknowledged that:
The middle part of [the] letter does concern the s 174 proceeding upon which Mr LW is acting but it cannot be the case that Mr LW is advising Mr FM on whether or not he should resume negotiations with our clients regarding the land referred to. ...
[15] He also raises the potential for Mr LW to be conflicted by acting for other clients whose interests would or could be affected if Mr FM chose to resume negotiations with Mr QQ’s clients.
[16] Mr QQ concludes the first part of his response in the following manner:
It is true, therefore, that my letter of 2 December 2020 does, by necessity, refer to matters upon which Mr LW is acting. It is for that very reason, rather than taking the artificial step of writing a shorter letter bereft of any context to Mr LW (that, after all, concerns matters upon which he is conflicted), I wrote one letter to the logical recipient but took the obvious precaution of copying Mr LW with that letter.
4 Letter QQ to Lawyers Complaints Service (12 February 2021), p 2.
[17] Mr QQ considered that Mr LW’ complaints about the content of his letter “betrays a serious misunderstanding of the factual and legal implications of the relevant events”.
[18] He deduces that the part of the letter that Mr LW is referring to is where he says, “The s 174 proceeding in the High Court is more than likely going to be struck out”.
[19] He summarises his views as follows:5
- (a) I did not say in my letter that “the proceeding will be struck out”. Rather, I said it is “more than likely going to be struck out” which is, obviously, an expression of opinion followed up by reasons for that opinion;
- (b) The obiter comment of Judge V that the “affairs of the company”, for the purpose of s 174, is to be interpreted broadly has no bearing, whatsoever, on whether this particular proceeding has any merit and will or will not be struck out on this pending application.
[20] Mr QQ concluded his response in the following manner:6
- (a) There is no credible basis for Mr LW’ allegation of misrepresentation and his complaint, in that respect, is frivolous and vexatious; and
- (b) I was (and am) conscious of the extent to which Mr FM is, or is not, represented and therefore ensured those who are, or may be, representing him on related matters were copied with the letter in question. Those with a duty to advise Mr FM in respect of parts of my letter, were able (and expected) to do so. As it is, the only response to my letter has come from Mr FM directly.
Mr LW’ reply
[21] Mr LW says:7
...the main issue is simple, ‘did Mr QQ deliberately contact a client with knowledge the client was represented by another lawyer?’
[22] He says:
...the letter complained about was primarily in respect of the s 174 proceeding. The obvious solution was to send the s 174 discussion to the solicitor or myself for consideration with the client.
7 Letter LW to Lawyers Complaints Service (3 March 2021).
[23] Mr LW advises that Mr FM responded directly to Mr QQ and that Mr QQ’s “breach has deprived the client of legal protection afforded by the rule against direct contact”.
[24] He submits that “the clear intent of the letter was to end the s 174 proceedings”.
[25] Mr LW points out that Mr QQ did say that ‘the proceedings will fail’ notwithstanding Mr QQ’s submission that he did not.
[26] He describes Mr QQ’s allegation of ‘malice’ on his part as unfounded.
[27] Mr LW did not provide any further submissions to the Committee.
Mr QQ’s submissions – 10 June 2021
[28] Mr QQ provided comprehensive submissions8 to the Committee following receipt of the Notice of Hearing issued by the Committee on 26 May 2021.
[29] The notice of hearing referred to potential breaches of rr 10, 10.1, 10.2, 2, 2.1,
2.2, and/or 13.2.
[30] I include here extensive quotes from Mr QQ’s submissions:
[31] “I do not have notice of any specific allegations of conduct that might fall within either of rr 10 or 10.1, as distinct from r 10.2, and expect the allegations really require consideration of r 10.2. If there is no breach of r 10.2 then there can be no breach of the general rules and, conversely, were there a breach of r 10.2, it would be inappropriate and effectively “double-punishment” to consider either of r 10 or r 10.1 to have been breached by the same conduct.”9
[32] “Rules 10 and 10.1, collectively, are concerned with a lawyer’s speech and manner when dealing with other practitioners. ...”.10
[33] “I believe the relationship between myself and Mr LW is strained. ...”.11
[34] “It does not attempt to cause Mr FM or FTL to lose confidence in Mr LW – to the contrary Mr LW’s role is acknowledged and the letter copied to him (which is, of course,
8 Mr QQ’s submissions occupy 34 pages.
9 Practitioner’s submissions for ‘on papers’ hearing (10 June 2021) at [3](a).
quite a different matter to whether or not Mr FM might lose confidence in CAL but Mr LW’s right to advise on that is accommodated)”12
[35] “Clearly no offence was intended by the communication – it was simply a forthright letter written in a litigation context – and Mr FM has not indicated any offence caused by its receipt.”13
[36] “It was a considered communication with content demanding consideration and accordingly copied to legal advisers who might have an interest or obligation to advise on said content and assist that consideration.”14
Rule 10.2
[37] “If there were a breach of r 10.2 it does not arise from the sending of the communication to Mr FM but, rather, the absence of any advance notice to Mr LW – but that notice would not have prevented the communication being sent. That notwithstanding, I was careful to ensure that no undue pressure was applied to, or any improper advantage derived from, Mr FM. There is no conduct warranting disciplinary intervention.”15
[38] “Accordingly, in order to progress my instructions and advance my client’s interests I was bound to:
- (a) Articulate what was proposed;
- (b) Provide reasons why Mr FM should not regard his District Court proceeding as relevant to his response to my client’s proposal; and
- (c) Likewise, articulate reasons why Mr FM/FTL should not ignore our client’s proposal in light of the CAL proceeding (which I consider to have been the main reason why the 2019 negotiations had been terminated by Mr FM).”16
[39] “However, a letter regarding the District Court proceeding alone was not what my instructions required of me.”17
[40] “Bereft of context, a communication addressing the CAL matters alone would be pointless and serve no purpose other than highlighting the unavoidable tension between the positions of Mr LW’s different clients.”18
[41] “I concluded that the most practical, and appropriate, means of reconciling the different obligations, duties and practical considerations was to write directly to Mr FM but copying, at the same time, both Mr LW and (Law firm).”19
[42] “[Mr FM] was the obvious recipient of the letter in his own interests as much as my clients. By virtue of his self-representation in the District Court proceeding I was not only entitled to write to him on matters pertaining to that but was required to do so. Rule
10.2 has no application so far as that is concerned. No other lawyer was acting in respect of that proceeding.”20
[43] “A separate letter could then, conceivably, have been written to Mr LW that addressed matters pertaining to the s 174/CAL proceeding only.”21
[44] “Notwithstanding r 10.2, he was self-represented on at least one of the matters (and was not apparently represented in relation to any negotiations of which there had not been any for 12 months) so I was permitted to write to him directly”22
[45] “Even so, because the letter by necessity traversed matters on which Mr LW had been involved, it was critical that Mr LW be copied – and he was;”23
[46] “... However, all of the content of the letter was designed to lead to the invitation to resume negotiations for an acquisition of the FTL shares. In its context, those parts of the letter pertaining to s 174 proceedings were of equal importance to all other aspects of the letter (but no more than that). All aspects of the letter were simply pointers to a single destination.”24
[47] “There was no intended interference with the relationship between Mr FM and Mr LW so far as the s 174 proceeding was concerned. To the contrary, my letter acknowledged that lawyer – client relationship and gave effect to it by ensuring that the letter was copied to Mr LW ”25
[48] “...none of the mischief that the rule is aimed at has been caused. At worst, for me, only a technical breach could be identified (largely the result of the difficult position I am placed in by Mr FM’s fluid use, or not, of legal representation).”26
[49] Mr QQ infers that the reference to r 2 and its subrules relates to the passage in Mr LW’ letter where the direct contact with Mr FM “leaves open the serious allegation that the lawyer and his client wrote the letter conspiring to defeat a filed proceeding”.27
[50] Mr QQ says that this allegation “seems to assert that when a communication that endeavours to compromise a proceeding, usually by settlement, is sent directly to a party then it is akin to blackmail”.28
[51] Mr QQ disagrees. He says, “...my letter had as its objective that goal commended by the courts as a matter of public policy – the private resolution of civil disputes”.29
Rule 13.2 30
[52] Mr QQ expresses puzzlement at the suggestion that r 13.2 could apply to his communication. He infers that the reference to the rule is that he purported to mislead Mr FM by stating that the s 174 proceeding would be struck out.
[53] He says that it is remarkable that Mr LW could draw that conclusion and denies that his letter was misleading or inconsistent with his obligations as an officer of the court.
[54] Mr QQ repeats his assertion that he “was entitled to write to Mr FM given his self-representation in the District Court and what notice Mr LW or, for that matter, Mr KD should have been given was adequately provided by copying the letter, contemporaneously, to them”.31
30 Rule 13.2 provides: ‘A lawyer must not act in a way that undermines the processes of the court or the dignity of the judiciary.’
[55] He says that if the Committee does not agree with that submission, then the breach was a technical breach only and did not warrant a finding of unsatisfactory conduct.
[56] Mr QQ submits that in the event the Committee does find there to have been unsatisfactory conduct on his part, then any penalties should be at the lowest end of the range or that there be no penalty at all.
Mr LW
[57] Mr LW did not respond further.
The Standards Committee determination
[58] The Standards Committee identified the key issues as being:32
- by writing directly to Mr FM did Mr QQ breach RCCC 10, 10.1 and or 10.2?
- by the contents of the letter to Mr FM did Mr QQ breach RCCC 2, 2.1, 2.2 and or 13.2?
- If the answer to either or both the questions above is yes, did this constitute unsatisfactory conduct?
[59] The Committee referred to Mr QQ’s acknowledgement that he wrote directly to Mr FM with “good intentions to encourage resumption of negotiation and to be fair to Mr FM”.33
[60] “... The Committee determined that Mr QQ’s stated intention to influence Mr FM supported a finding of a breach of the rules rather than as Mr QQ contended, supported it as being appropriate.”34
[61] The Committee did not accept that Mr QQ’s position was improved by the fact that he sent a copy of the letter to Mr LW. It considered that by the time Mr LW saw the letter and had the opportunity to contact Mr FM, it was possible that Mr FM could have responded without the benefit of Mr LW’s advice.
32 Standards Committee determination (29 November 2021) at [4].
[62] The Committee did not agree with Mr QQ’s view that as he considered Mr LW was conflicted, he was justified in making direct contact with Mr FM. The Committee also did not consider it to be an answer to Mr LW’s complaint to say that Mr QQ’s client had instructed him to write to Mr FM. The Committee observed that adherence to professional obligations can not be overridden by a client’s instructions.
[63] Whether or not Mr FM was influenced by the content of the letter was also not a reason to absolve Mr QQ’s conduct.
[64] Having considered all of the matters relative to Mr LW’s complaint, the Committee determined “that it was appropriate to restrict its review to whether Mr QQ breached RCCC 10.2 or not”.35
[65] The Committee then examined each of the exceptions to the application of the rule as provided in sub rules 10.2.1 to 10.2.6, and determined that none of the exceptions applied.
[66] “The Committee was satisfied ... that the breach of rule 10.2 was what lay at the heart of this complaint, and that it was not necessary to consider further action in relation to issue b”.36
[67] “The Committee determined that Mr QQ had breached RCCC 10.2 which was designed to prevent direct contact with a represented client for very salient reasons. The Committee noted that there were alternative options open to Mr QQ in the situation he faced such as writing two letters, asking Mr LW in advance if he would allow the letter to go directly copied to him contemporaneously, having arranged a time to do so which would suit Mr LW, or if he was concerned about the strained relationship as stated, telling Mr LW well in advance that the letter was going to be sent directly and copied to him. Instead, Mr QQ decided to take none of the alternatives open to him which would have mitigated or avoided a breach of this rule.”37
[68] The Committee rejected Mr QQ’s submission that the breach was a technical breach.
[69] Having formed these views, the Committee determined that Mr QQ’s conduct constituted unsatisfactory conduct as that term is defined in s 12(c) of the Lawyers and Conveyancers Act 2006, by reason of the breach of r 10.2.
[70] Having noted that Mr FM had not suffered any loss by reason of the direct contact, the Committee determined that Mr QQ’s conduct was at the lower end of unsatisfactory conduct.
[71] The Committee imposed a fine of $2,000 on Mr QQ and ordered him to pay the sum of $1,000 by way of costs.
Mr QQ’s application for review
[72] Mr QQ’s reasons in support of his application for review are set out here in full:
- In finding unsatisfactory conduct, the standards committee failed to have regard to, or gave insufficient weight to:
- (a) The unusual context and, in particular, the several proceedings, Mr FM’s varied representation, my obligations to my client culminating in the difficult judgement call I had to make to balance the various considerations;
- (b) The steps taken to avoid any prejudice to Mr FM and that:
- (i) Mr FM was not in fact prejudiced in any way, and
- (ii) could not, in fact, be prejudiced in any way in respect of the s 174 proceedings – being the only matter on which he was represented – because the only relevant step invited was discontinuance which step could not be taken before obtaining the advice of his lawyers; and
- The standards committee was wrong in fact and law to find:
- (a) An erroneous judgment call (if there was one) is always unsatisfactory conduct;
- (b) I deliberately breached a rule because my client instructed me to do so;
- (c) That I was not permitted, and required, to have regard to the circumstances including Mr LW’ simultaneous representation of two different clients with apparently differing interests;
- (d) That it is relevant that the letter was written, as the committee put it, in “legalese” and forcibly stated negative outcomes; and
- (e) That alternative options were rejected in order to prejudice, or unduly pressure, Mr FM.
- Due to the foregoing errors, the committee failed to properly consider if the public interest required that any proven breach of r 10.2 required disciplinary response.
Mr LW
[73] Mr LW did not wish to respond to Mr QQ’s application.
Process
[74] Mr QQ lodged his application for review of the Standards Committee determination on 29 November 2021. By email dated 3 February 2022, Mr LW advised that he had no response to make to the application at that time.
[75] Review Officer Maidment issued a decision on review on 20 May 2024. That decision was recalled for reasons as set out in the decision dated 11 June 2024.
[76] In his recalled decision, Mr Maidment directed:
- (a) LCRO 8/2022 issued on 20 May 2024 is recalled.
- (b) Mr QQ is to file further submissions on or before 5 pm Friday 21 June 2024.
- (c) Mr LW will have 10 days to respond to submissions received if he wishes to do so.
- (d) the review will be assigned to a fresh review officer.
[77] The review was then assigned to myself. I advise that in conducting this review, a new file has been created and allocated 8/2022B.38
[78] I have not read Mr Maidment’s decision of 20 May 2024 and am not aware of the outcome of that review.
[79] Mr QQ lodged further submissions on 21 June 2024 and copied these to Mr LW by email dated 2 August 2024. Mr QQ confirmed he was ‘happy for the matter to now proceed on the papers’.
[80] By letter dated 14 August 2024, Mr LW was reminded of the timetable established by Mr Maidment in his decision, and advised that I considered the review could be conducted on the papers.
[81] Mr LW did not acknowledge receipt of that letter as requested or make any comment on the proposal to direct the review on the papers.
38 The file and Mr Maidment’s decision have been reallocated the number 8/2022A.
[82] On 15 August 2024, the case manager telephoned Mr LW who confirmed that he had received the letter and advised that he had no objection to the review being completed on the papers.
[83] The case manager recorded her conversation with Mr LW in an email to him on the same day.
[84] This review has been conducted on the papers. I confirm that I have had regard to:
- (a) The Standards Committee file which included all submissions from the parties.
- (b) Mr QQ’s application for review and supporting reasons.
- (c) Mr QQ’s submissions dated 21 June 2024.
- (d) I have addressed only the impact of r 10.2 as I do not consider the other Rules referred to by the Committee have any significant relevance to the issues raised in this review. In this regard I confirm the determination of the Committee to address only that Rule.
Review
[85] Mr FM and FTL had engaged in what Judge V described39 as “a long, litigious and seemingly irreconcilable history now extending over a period of eight years”.
[86] The proceeding before Judge V was an application for stay by Mr and Mrs GA40 of the s 174 proceedings, and alternatively, if the stay application was unsuccessful, that the funder of the proceedings be required to provide security for costs.
[87] Mr and Mrs GA were represented by Mr QQ.
[88] FTL and Mr FM, the first and second plaintiffs, were represented by Mr LW.
[89] Judge V’s judgment was issued on 21 August 2020. Both applications were declined.
[90] Paragraph [48] of the judgment reads:
In that context I do not need to address the parties' further submissions about the merits of the s 174 claim other than to say that in both McClintock v Quinn23 and
39 FM Trustee Limited v Company B Limited, above n 2 at [3].
40 Mr and Mrs GA were the second defendants in the proceedings.
Latimer Holdings Ltd v Sea Holdings Ltd24 New Zealand Courts have recognised that the concept of the “affairs of the company” is to be broadly interpreted and that there are no fixed categories of cases to which s 174 applies.
23 McClintock v Quinn [2012] NZHC 16.
24 Latimer Holdings Ltd v Sea Holdings Ltd [2004] NZCA 226; [2005] 2 NZLR 328.
[91] Mr QQ was acting for the GAs in other matters involving Mr FM and/or FTL. Mr FM was self-represented in proceedings which he had brought against Mr GA in the [Suburb] District Court. Mr BP was acting for Mr FM in what Mr QQ has described41 as ‘a liquidation proceeding’.
[92] Mr GA had applied to strike out Mr FM’s claim in the District Court and that application was set down to be heard on 19 February 2021.
[93] The letter which Mr QQ sent to Mr FM, which is at the core of Mr LW’s complaint, is some two and a half pages long. The part of the letter dealing with the District Court proceedings comprises a single paragraph on the first page of the letter, and a small part of the third page.
[94] The remainder of the letter relates to the s 174 proceedings, in which Mr QQ expresses the view that Mr FM’s s 174 proceedings would ‘more than likely’ be struck out, or not succeed at trial, and endeavours to persuade Mr FM that he should enter into negotiations with Mr & Mrs GA.
[95] Rule 10.2 of the Rules provides:
10.2 A lawyer acting in a matter must not communicate directly with a person whom the lawyer knows is represented by another lawyer in that matter except as authorised in this rule.
[96] The sub rules set out circumstances which establish exceptions to the rule.
[97] In the text authored by GE Dal Pont (Lawyers’ Professional Responsibility),42
the author has this to say about the non-contact rule:
... The no contact rule aims to prevent a lawyer from circumventing the protection that legal representation provides to another person, most commonly the opponent but extending to a represented co-party or non-party fact witness as well as a non-client so represented prior to any suit being filed. Otherwise, the lawyer may, via her or his legal knowledge and position, secure damaging admissions from that other person, access privileged communications (see Ch 11) or undermine that person’s trust in her or his lawyer. Moreover, a dispute as to the contents of such a communication may require the lawyer to become a
41 Letter QQ to Lawyers Complaints Service (12 February 2021).
42 GE Dal Pont Lawyers’ Professional Responsibility (6th ed, Thomson Reuters, Sydney, 2013).
witness: see [17.45]. These concerns, albeit weightiest in contentious matters, apply in non-contentious matters too.
Some say that the rule can operate contrary to the interests of an opposing client, whose lawyer may thereby keep the client “in the dark” concerning the progress of the matter and the client’s chances of success. ...the more general argument has not proven so persuasive as to overcome the concerns to which the rule is directed. It has been noted, in this regard, that the fact that a lawyer “thinks that other side is not conducting the case to their client’s best advantage offers no excuse for the [lawyer] contacting the other client direct and telling him so. ...”.43
Apart from these circumstances, the professional rules generally only envisage circumventing the no-contact rule where the circumstances are so urgent as to require the lawyer to do so, providing that the communication would not be unfair to the other party.44
[footnotes omitted]
[98] I have not been able to source any judicial authority which could excuse Mr QQ’s conduct, and Mr QQ himself has not provided any.
[99] The Committee addressed each of the exceptions to the rule contained in rr 10.2.1 to 10.2.6. It is self-evident that none of the exceptions apply and I confirm the discussion by the Committee about each of the sub-rules.
Mr QQ’s submissions
[100] Mr QQ says that by copying the letter to Mr LW and his instructing lawyers, he minimised the consequences of his breach of the rule.
[101] If that submission were to be accepted as a defence to a breach, it would defeat the substance of the rule.
[102] Mr QQ submits that the Committee misconstrued the facts and made findings adverse to him that are wrong, and caused the Committee to overlook that his conduct was not such as to require further action.
[103] He says:
- (a) The Committee took into account matters that were advanced in response to the other rules that he was required to address, resulting in a misunderstanding of his response to r 10.2. This led the Committee to wrongly conclude that his writing the letter was deliberate and designed to exert improper pressure;
(b) The Committee misconstrued his response in relation to clause 10.2 and concluded that he had breached the rule because his client required him to;
(c) The Committee wrongly determined the communication could have improperly pressured or intimidated Mr FM when the facts do not permit such a conclusion.
[104] Mr QQ summarises45 the consequences of what he perceives as being errors by the Committee:
It is submitted that when those errors are considered and the matter reviewed afresh, it will be seen that any breach was not deliberate and considered, or, indeed, calculated to apply anything other than the pressure inherent in all litigation and could not, in fact, have compromised or prejudiced Mr FM in any way, (and did not do so.)
[105] Rule 10.2 is unequivocal:
“A lawyer ... must not communicate directly with a person whom the lawyer knows is represented by another lawyer in that matter.”
[106] Mr QQ knew Mr FM was represented by Mr LW on the s 174 proceedings.
[107] None of the exceptions in the sub-rules apply.
[108] Mr QQ wrote directly to Mr FM. Notwithstanding Mr QQ’s submissions to the contrary, the breach was considered and deliberate.
[109] The major part of the letter addressed the s 174 proceedings.
[110] The remainder of Mr QQ’s submissions comprise justification for the statements made by him, and observations that some of his assertions as to the potential outcomes have proven to be correct.
[111] None of these submissions can take away from the fact that Mr QQ wrote directly to Mr FM when he knew that Mr LW acted for Mr FM.
[112] Mr QQ then moves to his view that Mr LW was conflicted in that he was promoting the interests of Company A Limited. It is difficult to envisage how writing direct to Mr FM was the appropriate response to the perceived conflict. The appropriate response would have been to raise the matter direct with Mr LW.
45 QQ submissions 21 June 2024 at [4].
[113] Mr QQ’s reasoning seems to be that it was up to him to rectify the situation by appraising Mr FM of what he considered to be the realities of the situation, and by implication, that Mr LW was not proving impartial and objective advice to Mr FM.
[114] The irony of this, is that Mr QQ was putting himself in the very same position as he perceived Mr LW to be in – namely, that he was thereby himself conflicted by assuming to act in Mr FM’s interests.
[115] Mr QQ makes much of the fact that if the letter resulted in Mr FM wishing to withdraw the proceedings, he would need to engage Mr LW to implement that. The implication in Mr QQ’s submission, is that thereby Mr LW would have had the opportunity to advise Mr FM on the proposed course of action.
[116] Mr QQ again endeavours to draw attention away from the simple fact that his conduct amounts to a breach of the rule, simpliciter. Whatever view one takes of the content and consequences of the letter, does not detract from the fact that Mr QQ has breached the rule.
[117] None of Mr QQ’s submissions can alter the fact that he wrote direct to Mr FM on a matter where Mr FM was represented by Mr LW.
[118] Mr QQ is in breach of r 10.2.
[119] The next question to address is whether a finding of unsatisfactory conduct is the necessary consequence of the breach.
Unsatisfactory conduct
[120] In Ragg v Legal Complaints Review Officer,46 the Court of Appeal said:
[40] When assessing the case against Mr Ragg it was necessary for the Review Officer to consider whether protection of the interests of the community and the profession justified taking the formal step of making a finding that Mr Ragg was guilty of unsatisfactory conduct. The possibility of deciding to take no further action under s 152(2)(c) of the Act needed to be considered. The Review Officer failed to take this step.
[121] I confirm that I have taken the step of considering whether it is in the interests of the community and the profession to justify taking the formal step of making a finding of unsatisfactory conduct against Mr QQ.
[122] Rule 10.2 provides a clear and unequivocal direction that a lawyer should not communicate with another lawyer’s client unless any of the exceptions provided in the sub-rules apply. None of them apply.
[123] In the letter, Mr QQ dealt predominantly with the matter that Mr LW was acting for Mr FM on.
[124] Communication with a person who is a party to litigation with a lawyer’s client and who is represented by another lawyer, is a serious matter, for the reasons spelt out by Dal Pont.
[125] The fundamental point at issue is that Mr QQ has put himself in the middle of the relationship between Mr LW and his client. That is not acceptable.
[126] Mr QQ submits that Mr FM was not prejudiced in any way. That must necessarily be a subjective assessment and, whether or not it is correct, does not alter the fact that Mr QQ interfered with the relationship between Mr LW and his client.
[127] The community must be protected from interference in the relationship between a client and his or her lawyer of choice and the profession must be protected from interference by another lawyer in that relationship.
[128] I am firmly of the view that it is in the interests of the community that the breach of r 10.2 by Mr QQ must attract a finding of unsatisfactory conduct.
Rule 11.1 – Misleading statements
[129] Rule 11.1 provides:
11.1 A lawyer must not engage in conduct that is misleading or deceptive or likely to mislead or deceive anyone on any aspect of the lawyer’s practice.
[130] Mr LW says that Mr QQ’s statement in his letter that the s 174 proceedings would be struck out, was misleading because Judge V had answered that in his judgment. Mr LW says that Mr QQ’s statement was inconsistent with the judgment and was disrespectful of the Court.
[131] The statement by Mr QQ was that the proceedings were “more than likely going to be struck out”.
[132] Mr FM had the benefit of Mr LW’s advice and would likely recognise that this was nothing more than Mr QQ’s opinion.
[133] However, Mr QQ’s subsequent justifications for expressing these views is somewhat objectionable. In his submissions to the Standards Committee,47 Mr QQ says he saw it as his duty to inform Mr FM of the ‘flaws’ in his position.48 The inference to draw from this submission is that Mr QQ considered Mr LW’s advice to Mr FM was flawed, and that Mr FM needed to be protected from this flawed advice.
[134] It is not acceptable for a lawyer to write direct to another lawyer’s client and, either directly or indirectly, disparage the advice being provided by that other lawyer.
[135] Mr LW’s complaint could be taken as alleging breaches of rr 1249 and 13.2.150.
[136] However, the Committee did not frame its determination in that manner, and there is no need to do so.
[137] When the matter is seen in this way, it reinforces the need for there to be an adverse disciplinary finding for the breach of r 10.2.
Orders
[138] The Committee determined that Mr QQ’s conduct was at the lower end of unsatisfactory conduct, fined Mr QQ $2,000 and ordered him to pay $1,000 on account of costs.
[139] Mr QQ made a considered decision to write directly to Mr FM. The ‘consideration’ paid to the matter would appear to be how to apply the most pressure on Mr FM and a conclusion that this was to be achieved by casting doubt on the outcome of both proceedings.
[140] I do not necessarily agree with the Committee’s description of Mr QQ’s conduct as being towards the lower end of unsatisfactory conduct, but any modification of the orders in unnecessary.
[141] The finding of unsatisfactory conduct and confirmation on review, together with the orders imposed by the Committee, are sufficient to ensure that Mr QQ errs on the side of caution in the future when faced with a situation where the meaning of the Rules is clear, rather than expending time on justifying to himself why the clear meaning of the Rules could be put to one side.
48 QQ submissions to Standards Committee 10 June 2021 at [32]
49 Conduct dealing with others with respect, integrity and courtesy
50 Treat others involved in Court processes with respect.
Decision
[142] Pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006 the decision of the Standards Committee is confirmed.
Costs
[143] Where an adverse finding is upheld, costs will be awarded in accordance with the Costs Orders Guidelines of this Office. It follows that Mr QQ is ordered pursuant to s 210(1) of the Act, to pay costs in the sum of $1,200 to the New Zealand Law Society.
[144] Pursuant to s 215 of the Act, I confirm that the order for costs made by me may be enforced in the civil jurisdiction of the District Court.
Anonymised publication
[145] Pursuant to s 206(4) of the Lawyers and Conveyancers Act, I direct that this decision be published in an anonymised format on the website of this Office.
DATED this 8TH day of OCTOBER 2024
O Vaughan
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 QQ as the Applicant Mr LW as the Respondent
[Area] Standards Committee New Zealand Law Society
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URL: http://www.nzlii.org/nz/cases/NZLCRO/2024/125.html