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New Zealand Legal Complaints Review Officer |
Last Updated: 16 January 2025
LEGAL COMPLAINTS REVIEW OFFICER
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Ref: LCRO 153/2023
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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 decision of the [Area] Standards Committee [X]
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BETWEEN
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GP
Applicant
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AND
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DM
Respondent
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DECISION
The names and identifying details of the parties in this decision have
been changed.
[1] GP has applied for a review of a decision by the [Area] Standards Committee
[X] which had, following investigations into:
- (a) a complaint made by GP against DM; and
- (b) a further complaint against DM, this complaint prepared and filed by GP on behalf of her client SK; and
- (c) A complaint made by DM against GP;
issued a single decision addressing the three complaints, in which findings of unsatisfactory conduct were entered against both GP and DM.
Background
[2] The complaints are comprehensively set out in the Standards Committee decision of September 2023.
[3] The parties’ complaints had their genesis in disagreements that arose between GP and DM in the course of representing their respective clients in negotiations relating to the division of matrimonial property.
[4] GP represented SK; DM, PXQ.
[5] SK and PXQ were the settlors and trustees of the XQ Family Trust (XFT).
[6] The firm of which DM was an employee (Law Firm A), had acted for SK and PXQ in establishing the trust.
[7] PXQ’s parents’ trust (the CD & JP XQ Family Trust – CDJP-XFT) had advanced loan funds to XFT.
[8] Question as to how obligations XFT owed to CDJP-XFT were to be met, became contentious.
[9] As negotiations progressed, GP raised complaint with DM that she was conflicted in continuing to act for PXQ, as Law Firm A had acted for PXQ and SK in setting up the XFT.
The complaints and the Standards Committee decision
[10] GP lodged her first complaint with the New Zealand Law Society Complaints Service (NZLS) on 27 May 2022.
[11] Her complaint had been prompted by correspondence that DM had forwarded to her on 11 May 2022.
[12] In that correspondence, DM had said this:
Your client has repeatedly made comments about his intent to use the legal process to obstruct PXQ. Your correspondence continues to align with this intent. We remain concerned that you and SK are obstructing a speedy, fair and just resolution of the assets that were acquired during the parties’ relationship.
[13] It was GP’s contention that DM’s correspondence made improper allegation that she was colluding with her client with deliberate purpose to obstruct resolution of the relationship property matters.
[14] DM filed her complaint on 14 July 2022.
[15] Her complaint included a response to the complaint filed by GP on 27 May 2022.
[16] In responding to GP’s complaint that she had accused GP of colluding with her client to frustrate progress on resolving the relationship property dispute, DM:
- (a) apologised for any offence that had been caused to GP; and
- (b) explained that it was not her intention to convey the meaning that GP had taken from the offending paragraph; and
- (c) acknowledged that both she and her client had become frustrated with lack of progress, and that this frustration played out when she was drafting the correspondence which had caused offence to GP; and
- (d) acknowledged that she should have “done better”; and
- (e) offered further apology for any offence caused; and
- (f) acknowledged that she would have apologised sooner if she’d had opportunity to do so.1
[17] The core of DM’s objection to GP’s conduct was complaint that GP:
- (a) had, in the course of engaging with DM, behaved in a bullying and disrespectful manner, such as to constitute a breach of rr 10.1 and 10.3 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care)
Rules 2008 (the Rules); and
(b) became compromised and conflicted in continuing to act for SK as a consequence of filing her complaint; and
(c) made repeated threats of intention to file complaints to the Law Society which constituted bullying; and
(d) failed to respond to reasonable requests to provide information.
[18] In addition to articulating her complaint and responding to the complaint lodged by GP, DM sought advice from the Law Society as to whether Law Firm A were able to
1 Health issues had necessitated DM taking extended leave shortly after forwarding correspondence to GP on 7 May 2022.
continue to act for PXQ and whether GP’s complaint had compromised her ability to continue to represent SK.
[19] GP filed a complaint on behalf of her client on 20 July 2022.
[20] The complaint was that DM was conflicted in continuing to act for PXQ, the foundation for this premised on argument that:
- (a) Law Firm A had prepared the trust deed for the XFT; and
(b) Law Firm A had acted, and continued to act, for the trust; and
(c) Law Firm A had acted on the sale of the trust property; and
(d) Law Firm A had acted for both SK and PXQ.
[21] The Standards Committee issued the parties with a notice of hearing on 5 April 2023.
[22] It is relevant, for the purposes of this review, that the Committee noted in its decision that the notice of hearing issued, in addressing question as to whether DM had “misused the complaints process”, had incorrectly cited the conduct rules relevant to this element of complaint. The Committee noted that whilst r 2.3 was “generically applicable”, r 2.10(1)(a) and r 2.10(1)(b) had no application. The Committee considered that rule 2.10 (not referenced in its notice of hearing) was the rule that more directly related to the alleged breach.
[23] Rule 2.10 provides that a lawyer must not use, or threaten to use, the complaints or disciplinary process for an improper purpose.
[24] Complaint that DM had initiated a conduct complaint with purpose to counter GP’s complaint is properly examined by reference to r 2.10.
[25] Errors were also made in the citing of relevant rules in respect to the question as to whether GP had breached conduct rules by threatening to file a complaint against DM if she refused to comply with request to hand over PXQ’s files to another law firm. This inquiry was framed by reference to r 2.7 which directs that a lawyer must not threaten, expressly or by implication, to make any accusation against a person or to disclose something about any person for any improper purpose.
[26] In its decision, the Committee noted that the applicable rule was the previously referenced r 2.10.
[27] Complaint that GP had breached specific conduct rules by representing SK in the complaint filed on behalf of SK was also referenced to conduct rules in the notice of hearing which the Committee concluded were more appropriately addressed by reference to a different conduct rule.
[28] The Standards Committee delivered its decision on 20 September 2023.
[29] To the extent the decision addressed issues specific to this review(s), the Committee determined that:
- (a) DM had, in respect to the filing of her complaint against GP, breached r 2.10, this providing foundation for an unsatisfactory conduct finding; and
- (b) GP had, in respect to her threats to make complaint to the NZLS unless DM ceased acting, and the role she had played in advancing SK’s complaint, breached r 2.10, this providing foundation for unsatisfactory conduct findings.
[30] The Committee’s decision comprehensively examined the conflict issue.
Applications for review
[31] GP filed an application for review on 30 October 2023.
[32] The elements of the Committee’s decision that she sought to review were:
- (a) the Committee’s finding that her demand of Law Firm A that files be handed over to another lawyer constituted unsatisfactory conduct; and
- (b) the Committee’s finding her role in advancing complaint on behalf of SK constituted unsatisfactory conduct.
[33] GP submits that:
- (a) the Committee had referenced incorrect conduct rules when advancing its investigation; and
- (b) it was not within the power of the Committee to amend the rules under which the investigation had been conducted; and
- (c) the Committee erred in concluding that the error in referencing the applicable rules did not result in any prejudice to her; and
[34] DM filed a response to GP’s review application on 3 November 2023.
[35] Her response presented as somewhat ambivalent and uncertain as to what her objectives were in responding to GP’s application.
[36] DM commenced her response with indication that she was “a little unclear” as to her role in the review.
[37] DM advised that she wished to “raise a matter of fact that led to the outcome of unsatisfactory conduct against me and briefly respond to GP’s review documentation”.
[38] Her response was largely directed to providing explanation as to why she considered the Committee had erred in finding that her conduct had been unsatisfactory.
[39] Parties who seek to review a Committee’s decision are required to file their review application within 30 working days of the Standards Committee delivering its decision.
[40] GP, when responding to DM’s response to her review application, noted that “it is unclear as to whether the email from DM is an application for a review or not. Even if it is, it may be well out of time”.2
[41] GP went on to say that the question as to whether DM’s application was filed in time or not did not require answering. She emphasised that her only interest was in having her own review application addressed.
[42] It is the practice of the LCRO to strictly enforce time frames for the filing of review applications, however in circumstances where (as in this case) a party has both responded to an application for review that has been filed by another party, and their response presents not only as a defence to the review application filed but also a challenge to a Committee’s decision engaging the party filing the response, LCROs approach the review mindful that it has frequently been emphasised that the role of a Review Officer, when approaching the process of review, is to consider all matters afresh.
2 GP correspondence to LCRO (14 November 2023).
[43] A consideration of the Committee’s findings in respect to DM, are properly “triggered” by GP’s application.
[44] In considering the response DM provides to GP’s review application, it would present as unnecessarily restrictive to consider that response in isolation from the argument DM raises in respect to the unsatisfactory conduct finding that had been entered against her.
[45] DM’s application to review the Committee’s finding that her conduct had been unsatisfactory will be considered.
[46] In responding to GP’s review application. DM submitted that:
- (a) the submissions she had provided to the Standards Committee had set out her position in respect to each of the issues; and
- (b) the Committee was correct to conclude that it was the responsibility of the firm acting to determine whether it was in possession of information that could potentially prejudice a former client; and
- (c) a number of “broad-brush” statements made in GP’s review application were factually and legally incorrect.
[47] In addressing argument that the Standards Committee had erred in concluding that her conduct had been unsatisfactory, DM submitted that:
- (a) the 19 July 2022 application she had filed with the Complaints Service, was intended to:
- (i) respond to GP’s complaint; and
- (ii) advance a complaint against GP; and
- (iii) make request of the Committee to “assist” in resolving the conflict argument.
- (b) outcomes sought were set out in the body of her complaint, being:
- (i) a determination that the complaint made by GP be dismissed; and
- (ii) a finding made that GP’s conduct had been bullying and disrespectful; and
(c) The submission DM filed with the Complaints Service had summarised her desired outcomes as:
- (i) direction that GP attend training; and
- (ii) GP’s complaint be taken no further; and
- (iii) the Law Society provide direction on the conflict issue.
[48] DM noted that the Committee had concluded at [144] of its decision, that “the problem for DM is that she stated that she made the complaint for three reasons and one of those three reasons was that ‘the complaint against me is not taken any further”.
[49] The manner in which DM had advanced her complaints, persuaded the Committee that DM had progressed her complaints partly with purpose to counter the complaint that had been filed by GP.
[50] DM considered that the Committee had reached that view as a consequence of the conclusions it had drawn from the way she had framed the outcomes sought when drafting her complaint on the Complaints Services standard complaint form.
[51] The outcomes sought by DM were explained by her as follows:
- (a) GP is directed to attend training; and
- (b) the complaint against me is not taken any further; and
- (c) the Law Society provides directions as to whether Law Firm A or GP were conflicted.
[52] DM considered that her complaint had been filed for proper purpose.
[53] She rejected suggestion that her purpose in filing her complaint, was to counter the complaint that had been advanced by GP.
Review on the papers
[54] A decision was initially made that this review would be conducted on the papers.
[55] Section 206(2) of the Act 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.
[56] If in the course of conducting a review on the papers, an LCRO concludes that it would be advantageous to hear from one or both of the parties on a particular issue or issues, arrangements will be made to facilitate that process.
[57] A telephone conference was convened with GP.
[58] GP was represented at that conference by WZ.
[59] I did not require DM’s attendance at the conference and explanation was provided to her as to my reasons for that decision.
[60] I was satisfied, at the conclusion of that conference, that GP had been given both opportunity to address concerns that the Standards Committee had misidentified conduct rules in its notice of hearing, and opportunity to provide comprehensive explanation of the grounds on which she sought to challenge the Committee’s decision.
[61] That explanation was bolstered by further written submissions which GP was provided leave to file at the conclusion of the conference.
Nature and scope of review
[62] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:3
... the power of review conferred upon Review Officers is not appropriately equated with a general appeal. The obligations and powers of the Review Officer as described in the Act create a very particular statutory process.
The Review Officer has broad powers to conduct his or her own investigations including the power to exercise for that purpose all the powers of a Standards Committee or an investigator and seek and receive evidence. These powers extend to “any review” ...
... the power of review is much broader than an appeal. It gives the Review Officer discretion as to the approach to be taken on any particular review as to the extent of the investigations necessary to conduct that review, and therefore clearly contemplates the Review Officer reaching his or her own view on the evidence before her. Nevertheless, as the Guidelines properly recognise, where
3 Deliu v Hong [2012] NZHC 158, [2012] NZAR 209 at [39]–[41].
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.
[63] The High Court has described a review by this Office in the following way:4
A review by the LCRO is neither a judicial review nor an appeal. Those seeking a review of a Committee determination are entitled to a review based on the LCRO’s own opinion rather than on deference to the view of the Committee. A review by the LCRO is informal, inquisitorial and robust. It involves the LCRO coming to his or her own view of the fairness of the substance and process of a Committee’s determination.
[64] 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
[65] The following issues will be addressed on review:
- (a) introductory comments; and
- (b) Did DM improperly use the complaints process for purposes of defending GP’s complaint; and
- (c) did GP’s advancing of a complaint on behalf of SK, constitute unsatisfactory conduct; and
- (d) did GP’s indication that a complaint would be filed with the Complaints Service if DM refused to transfer her file to another lawyer, constitute unsatisfactory conduct?
[66] Working through the information that was provided to the Standards Committee has not been without its difficulties.
[67] The Standards Committee decision is lengthy.
4 Deliu v Connell [2016] NZHC 361, [2016] NZAR 475 at [2].
[68] The task of the Committee was complicated by the fact that it was dealing with three separate complaints.
[69] The Committee concluded that the complaints filed were “indicative of a deteriorating relationship between DM and GP (and EA) in relation to their respective representation of PXQ’s and SK’s personal interests”.5
[70] I agree with the Committee that the submissions filed by GP and DM give indication of a deteriorating professional relationship.
[71] It may have been the case that necessity for recourse to the Complaints Service could have been avoided if the lawyers had stepped back and adopted a more distanced, objective approach to resolving the issues in contention.
[72] At the core of the dispute between GP and DM was argument as to whether DM (and her firm’s) representation of PXQ in relationship property matters, put the lawyers in a position of conflict as a consequence of Law Firm A’s previous role in establishing the XFT.6
[73] GP was within her rights to raise the conflict issue.
[74] Law Firm A had represented PXQ and SK in setting up the XQ Family Trust. It was not unreasonable of GP to raise concerns that DM could potentially be conflicted,
[75] Many practitioners in GP’s position would likely have sought assurance from Law Firm A that it was not in possession of information acquired from SK and PXQ in the course of setting up their trust (or in any other dealings), that could potentially prejudice SK.
[76] GP, DM and Law Firm A were unable to reach agreement on the question as to whether DM (and the firm) were conflicted.
[77] Their respective responses to that impasse were influential in shaping the conduct complaints that were subsequently advanced.
[78] DM’s complaint that GP was potentially conflicted in continuing to act for SK once GP had filed a complaint is difficult to follow. It is understandable that the Committee determined to take no action in respect to that element of complaint.
5 Standards Committee decision (20 September 2023) at [6].
6 The scope of the alleged conflict is further referenced to argument that Law Firm A had represented PXQ and SK in a personal capacity, but little explanation is provided of the nature or extent of the involvement alleged. The fact that PXQ's parents’ family trust, had advanced funds to the XQ Family Trust is also said to have contributed to the potential for conflict.
[79] The Committee’s approach to examining the conflict issue was both careful and comprehensive.
[80] I do not propose to traverse the examination undertaken by the Committee and its reasoning in reaching conclusion that neither DM nor her firm were conflicted. The Committee’s dissection and analysis of the conflict issues was methodical and thorough.
[81] The Committee’s analysis of the conflict issues was reinforced by its explanation of the reasons as to why (in the event it had misdirected itself in respect to the conflict issue) it would not have concluded that breaches (if established) would have merited a disciplinary response.
[82] The issue of potential conflict was raised several months into the relationship property dispute.
[83] GP is correct when she submits that delay in raising the complaint does not necessarily diminish the validity of her complaint. If DM was conflicted, she was conflicted. Delay in raising the issue did not make the issue disappear.
[84] That said, it could reasonably have been expected of GP that if she and her client had serious reservations about DM or Law Firm A acting on the relationship property matter, those concerns would have been capable of being identified and addressed at commencement.
[85] Accusation of conflict focused on the XQ Family Trust.
[86] The trust’s major asset was a residential property that was sold in the course of negotiating final settlement of relationship property matters.
[87] DM, clearly mindful of the need to avoid possibility that her firm acting on the sale of the trust property could raise concern, suggested to the lawyer then acting for SK that the sale of the property be transacted as a multi-party dealing.
[88] This was suggestion that was intended to ensure that the sale was managed at arm’s length.
[89] Somewhat surprisingly (in light of allegations later raised that Law Firm A’s involvement with the trust created potential for conflict) GP’s client made specific request of Law Firm A to manage the sale of the trust property.
[90] GP’s instructions following sale were for the mortgage to be paid and the balance to be held in trust pending agreement or a court order.
[91] DM recommended a further option for distancing her and her firm from concerns that the firm’s earlier involvement in setting up the trust potentially raised conflict issues. She suggested to GP, that it would be preferable that sale funds held by Law Firm A be transferred to another law firm.
[92] This option was not agreed to.
[93] When the spectre of potential conflict was raised, DM did not ignore the issue.
[94] CU,7 a senior lawyer with Law Firm A, responded to the concerns GP had raised.
[95] Law Firm A also sought advice from senior counsel.
[96] Law Firm A proposed instructing a senior practitioner or retired judge to facilitate negotiations between the parties in an effort to resolve the dispute.
[97] The steps taken by DM (and her firm) to separate trust activities from the relationship property matters, the seriousness with which GP’s complaints were responded to (including taking advice from senior counsel) and the willingness of Law Firm A to take the heat out of the dispute by engaging an independent arbiter, were indicative of a responsible approach being taken to dealing with the conflict allegation.
[98] In my view, both DM and GP misunderstood aspects of the complaints process.
[99] Both, to a degree, approached the Complaints Service with indication of expectation that the Complaints Service would make a finding on the conflict issue, following which they would be free to proceed with resolving the relationship property dispute.
[100] The role and functions of a Standards Committee are set out in s 130 of the Act. Those functions include:
- (a) to enquire into and investigate complaints made under s 132:
- (b) to promote, in appropriate cases, the resolution of complaints by negotiation, conciliation, or mediation:
- (c) to investigate of its own motion any act, omission, allegation, practice or other matter that appears to indicate that there may have been misconduct or unsatisfactory conduct on the part of a practitioner or any
7 Ms CU is referenced in the Committee's decision as Mr CU. GP corrected this in the course of the hearing.
other person who belongs to any of the classes of persons described in s 121:
(d) to intervene, in the circumstances prescribed by this Act, in the affairs of practitioners or former practitioners or incorporated firms:
(e) to make final determinations in relation to complaints:
(f) to lay, and prosecute, charges before the disciplinary Tribunal.
[101] The primary role of a Standards Committee is to determine conduct complaints.
[102] When responding to GP’s complaint (whilst at the same time advancing her own complaints) DM invites the Standards Committee to “provide a direction as to whether or not there is a conflict of interest for either or both Law Firm A and GP”. She explains that she is “seeking an indication from the Law Society as to whether or not Law Firm A can continue to act for PXQ”.8
[103] DM advanced argument that GP’s complaints raised question as to where GP’s potential to bring an open mind to the task of representing SK, had resulted in GP being potentially conflicted.
[104] SK’s complaint of 20 July 2022, (drafted and filed by GP) attempts to persuade the Committee that DM (and Law Firm A) were conflicted. The outcome sought is not for any of the conventional penalties available to a Committee to be imposed consequential on a finding of unsatisfactory conduct (the application does not mention the entering of an unsatisfactory conduct finding), but rather, the remedy sought is for “order be made that Law Firm A transfer the file to another firm which does not have a conflict of interest”.
[105] The direction sought by SK echoes GP’s request to DM in her correspondence of 26 May 2022, for DM to “please transfer the file to another firm of solicitors in your locality and advise who I should contact”, and GP’s request of DM on 16 June 2022, that she “confirm that your firm will cease acting on or before 23 June 2022. If you do not agree or I do not hear from you, then I will refer the matter to the New Zealand Law Society”.
[106] The Standards Committee considered it debatable as to whether it had jurisdiction to order a lawyer to shift a client’s files to another lawyer. The decision as to whether a client moves their files, generally rests with the client.
8 DM correspondence to Complaints Service (7 June 2022).
[107] But a Committee can make orders that render it untenable that a lawyer continue to act for a client. If the Committee concluded that Law Firm A’s ability to continue to act for PXQ was compromised by the fact that the firm retained information confidential to PXQ and SK, the retention of which could potentially prejudice SK in the relationship property dispute, options open to the Committee would be to consider imposing an unsatisfactory conduct finding, together with appropriate penalties.
[108] A finding of this nature would render it unfeasible for Law Firm A to continue to act for PXQ.
[109] The Standards Committee understandably emphasised that its role was not to provide advice as to whether a lawyer should be compelled to cease acting for a client. Its job was to determine conduct complaints.
[110] GP acknowledged, in the course of the telephone hearing that the distinction between a Committee delivering a determination on a conduct complaint, and the Law Society providing advice to parties, was a critical distinction.
[111] The potential for misunderstanding of process is perhaps partially explained by the fact that central to the Committee’s process, was requirement that it examine and determine as to whether it considered that DM or Law Firm A were conflicted.
[112] But that analysis was not undertaken with purpose to provide guidance as to how one of the parties in a relationship property dispute would be legally represented. The Committee’s task, in examining the conflict issue, was to determine by reference to the context and relevant conduct rules:
- (a) Whether DM was conflicted as a consequence of her firm’s previous involvement with PXQ and SK; and
- (b) Whether GP was conflicted in continuing to represent SK, following her filing of a conduct complaint on behalf of SK.
[113] The Committee’s task was to determine as to whether either of the practitioners had breached their professional obligations and duties.
Did DM improperly use the complaints process for purposes of defending GP’s complaint?
[114] The Committee concluded that DM had, when filing her response to the initial complaint filed by GP (and advancing her own complaints), misused the complaints
process by utilising the complaints process for purposes of countering the complaint that GP had made against her.
[115] The Committee explained its reasoning for concluding that an unsatisfactory conduct finding was merited as follows:
The problem for DM9 is that she stated that she made the complaint for three reasons and one of those three reasons was that “the complaint against me is not taken any further”. DM’s candour in that respect is to her credit but the use of the complaints process for that purpose was improper. GP’s observation of it being, in that respect, a “tit-for-tat response” to her own complaint is understandable.
All DM needed to do was either justify her comment about GP or retract and apologise for it. That would very likely have been the end of the matter. In the unlikely event that GP had not then withdrawn her complaint, it is highly likely that the Committee would have resolved to take no further action at the s 137 stage.10
[116] The Committee noted that its finding that DM’s conduct had been unsatisfactory, was a “finely balanced one”. It observed that DM’s response document attached to her complaint was otherwise considered, measured and appropriate, and that her “complaint was warranted in other respects but she cannot escape her own admission that it was brought partly for the improper purpose of countering GP’s complaint”.
[117] The Committee’s decision to impose an unsatisfactory conduct finding was premised on conclusion that DM had acknowledged and conceded that part of her objective in filing her complaint against GP, was to provide a response/defence to GP’s initial complaint.
[118] With respect to the Committee, I disagree with its finding that DM had herself acknowledged that she had filed her complaint with partial purpose to challenge the complaint initially advanced by GP.
[119] I have carefully read DM’s complaint form and the submissions filed by her in response to GP’s complaint and the submissions advanced in support of the complaints she makes against GP.
[120] A careful reading of the information provided by DM does not reasonably lead to inference being drawn that DM was intentionally advancing a complaint against GP, in order to provide defence to GP’s initial complaint.
9 Parts of the Committee decision record DM as Mrs DM. Direct quotations from the Committee's decision, have been cited as recorded.
10 Standards Committee decision, above n 5, at [144]–[145]. (Note the Committee refers in those paragraphs to Mrs DM).
[121] There is no evidence that supports the Committee’s conclusion that DM had “stated” that she had “made the complaint for three reasons, one of those being that “the complaint against me is not taken any further”.
[122] When DM filed her application with the Complaints Service, her purpose was twofold. She was both responding to GP’s complaint, and advancing her own complaints. She was also, in a step which reflected both her lack of familiarity with the Complaints process and her lack of understanding of the role of a Standards Committee, inviting the Committee to provide authoritative determination on the question as to whether either or both of the practitioners were conflicted.
[123] When filing her complaint, DM makes clear that she is:
- (a) providing her response to GP’s complaint; and
- (b) filing a complaint against GP; and
- (c) seeking guidance from the New Zealand Law Society about two potential conflicts of interest.
[124] In the standard form provided to parties to assist with filing complaints, a section of that form provides opportunity for parties to record the outcomes that they seek.
- [125] DM records those (in order) as:
- (a) GP is directed to attend training; and
- (b) The complaint against me is not taken any further; and
- (c) The Law Society provide a direction on whether Law Firm A or GP are acting in conflict.
[126] I can find no evidence in the material DM provided to the Standards Committee of DM suggesting that a specific reason for advancing her complaints, was to assist in fending off GP’s complaint.
[127] I think it probable that the the Committee had erroneously concluded that when DM referenced the outcomes she sought (listed on the complaint form) as including request that the complaint against her be taken no further, the Committee interpreted that objective as indication that her complaint against GP was being advanced with purpose to counter GP’s complaint
eventual conclusion that DM’s complaint was “warranted in other respects”, would indicate that the Committee had concluded that DM had advanced her complaints responsibly.
[141] I agree with the Committee.
[142] Prior to filing her complaints, DM had taken advice both from a senior colleague in her firm, and from independent senior counsel from outside the firm.
[143] Both considered that DM had reasonable grounds to make complaint.
[144] The Committee’s finely balanced conclusion that DM’s conduct merited an unsatisfactory conduct finding, was strongly influenced by conclusion that DM herself had acknowledged that part of the reason she had initiated her complaints against GP, was to ensure that the complaint made against her “was not taken further”.
[145] DM did not present that as her position.
[146] DM did not say that she had brought complaints against GP with purpose to respond to the complaints that GP had made against her.
[147] Her response to GP’s complaint, and her advancing of complaints against GP, were appropriately managed and dealt with at all times as distinct and separate matters.
[148] It is appropriate that the Committee’s unsatisfactory conduct finding in respect to DM be reversed.
Did GP’s advancing of a complaint on behalf of SK, constitute unsatisfactory conduct?
[149] GP lodged a complaint on behalf of SK on 20 July 2022.
[150] The correspondence which accompanied GP’s application reflected the extent to which both GP and DM had, in similar ways, misunderstood the purpose and function of the complaints process.
[151] GP makes request of the Committee to deal promptly with SK’s complaint, “primarily because this matter is headed to court and, in my view, there is a conflict of interest between Law Firm A’s acting for PXQ, who will be the respondent. There is also a conflict of interest in Law Firm A’s acting for the family trust of which my client and PXQ are the Trustees and settlors. The sooner the matter is decided, the sooner it can move to another firm (if that is what the Law Society rules).”
[152] GP invites the Standards Committee to make directions which would achieve the outcome she had demanded of Law Firm A in correspondence to the firm of 15 May 2022 and 16 June 2022.
[153] In her 16 June correspondence, GP had made request of Law Firm A that the firm cease acting for PXQ “before 23 June 2022”. If the firm refused to comply with her request, GP advised that she would be referring the matter to the New Zealand Law Society.
[154] The Committee noted that it was debateable as to whether a Committee had jurisdiction to direct a practitioner to shift a client’s files to another firm and commented that in circumstances where parties are engaged in a relationship property dispute and court proceedings have been signalled if not yet commenced, the appropriate course of action for a party that considers itself to be prejudiced by the other party’s lawyers alleged conflict of interest, is to apply to the court for an order for recusal.
[155] It is important to understand the Committee’s articulation of the complaint that had led to its finding that GP’s advancing of SK’s complaint merited an unsatisfactory conduct finding.
[156] The question posed by the Committee was whether GP had engaged in obstructive or bullying behaviour to gain a tactical advantage by the demands she made on behalf of SK, and by representing SK in filing his complaint.
[157] At the core of the Committee’s finding, was its conclusion that GP was the author of SK’s complaint, that it was she who was pushing the complaint, and that her purpose in doing so was to simply provide a further vehicle to assert pressure for her continuing argument that DM was conflicted and should cease acting for PXQ.
[158] The Committee concluded that the SK complaint constituted a separate breach of r 2.10 as it was “made for the express purpose of persuading Law Firm A to cease to act”.11
[159] The issue that must be initially determined when examining this element of complaint, is the question as to whether it can safely be concluded that GP was the driving force behind SK’s complaint.
[160] The Committee’s finding that GP’s conduct was unsatisfactory, proceeds from the Committee’s conclusion that GP was using SK as “cover” to advance what essentially were her complaints.
[161] GP emphatically rejected suggestion that she was using SK as a mouthpiece to advance her personal agenda.
[162] She explained that SK had raised concerns with her about Law Firm A representing PXQ.
[163] She emphasised that SK provided her with specific instructions to advance a complaint.
[164] It is understandable that the Committee was drawn to conclusion that GP was the instigator of the SK complaint.
[165] The complaint, when closely examined, closely mimics the issues identified, and positions argued for, by GP in the course of her exchanges with DM.
[166] The remedy sought by SK is not that a conduct finding be made against DM, but rather that Law Firm A be directed to transfer “the file to another law firm which does not have a conflict of interest”.
[167] Despite the complaint being advanced by SK, it displays minimal evidence of him being involved in, or having input into, the preparation of the complaint.
[168] Whilst the background provided for SK’s complaint is described as “background from client’s perspective”, that background is explained without any semblance of indication from SK of him having any involvement with the preparation of the complaint.
[169] The background simply provides account (from GP’s perspective) of the exchanges between herself and DM, her (GP’s) view of the legal issues engaged.
[170] The conclusion to SK’s complaint is illuminating.
[171] The conclusion reads as follows:
I have tried to resolve this matter of conflict without the need for intervention of the Law Society. I now ask the Law Society to deal with this on an urgent basis because the longer this goes on, the more entrenched my client will become in his attitude and the more likely the conflict will become. In my view, it is inevitable that a conflict does arise because this firm has acted for the couple and their trust for some time and should not now be acting at all.
[172] It is difficult to discern any echo of SK’s voice in the complaint filed.
[173] It could reasonably have been expected of SK, when advancing his complaint, that he would have taken the opportunity to more fully explain his concerns regarding
the conflict issue by particularising those concerns in more specific terms other than by broad reference to Law Firm A having acted for “SK, PXQ and their family trust”.
[174] SK had opportunity to clarify the occasions in which DM’s firm had represented him and PXQ in a personal capacity (other than in respect to the acknowledged work in establishing the family trust) and to provide explanation as to the nature of the confidential information that he considered was at risk of being compromised if DM were to continue to represent PXQ.
[175] The Committee concluded that GP “... was the author of the complaint and was a party to it being made and it can readily be inferred that it was made on her advice for the express purpose she had already stated in her threat to make one”.12
[176] The Committee’s conclusion that GP had essentially engaged in deceptive and misleading conduct by advancing her conduct complaint in SK’s name, prompted the Committee to conclude that the “pursuit of an unmeritorious argument to seek tactical advantage in legal negotiations or proceedings by interfering in the other party’s professional advisory relationship could be regarded as displaying a lack of integrity in dealings with another person...”.13
[177] GP is described as being “persistent and aggressive in her pursuit of the alleged conflict of interest issue without being able to articulate the basis for her assertions”.
[178] These are serious criticisms to make of a practitioner but I am not persuaded that they are criticisms that are entirely fair to make.
[179] I agree that GP was forceful in advancing her positions.
[180] But it is a step too far to characterise that forcefulness as reflective of a lack of integrity.
[181] I had the benefit (not available to the Committee) of hearing directly from GP.
[182] Having had that opportunity, I am satisfied that GP, during the course of the retainer (and indeed following its conclusion), retained a genuine conviction that her view of the conflict issue was correct.
[183] She says that she is supported in that view by colleagues she had consulted and WZ (representing her at hearing) also appeared to approach the conflict issue from the somewhat limited perspective that a lawyer’s role in establishing a trust for parties in
a personal relationship, should automatically provide grounds for the lawyer recusing themselves from representing one or other of those parties in a relationship property dispute.
[184] I hasten to emphasise, WZ briefly addressed the issue at hearing and his understanding of the conflict issue, if examined more substantially, may well have been more comprehensive and nuanced than the simple approach described.
[185] GP may have (as concluded by the Committee) been wrong on the question as to whether DM was conflicted.
[186] She may have been so robust in advancing that position, and so confident in it, that she would not, or did not see the need to, accommodate any suggestions made to address the concerns she had raised.
[187] But lawyers will, as has been emphasised in many disciplinary decisions, on occasions get it wrong.
[188] Whilst I agree with the Committee that GP’s somewhat heavy hand was all over her client’s complaint, I am not persuaded that her role in the advancing of SK’s complaint merited an unsatisfactory conduct finding.
[189] GP was emphatic at hearing that SK had instructed her to file a complaint.
[190] She explained that she had discussed the complaint with SK and had firm instructions from him to advance a complaint.
[191] There is little in the complaint drafted by GP which provides evidence of SK’s engagement with the complaint, but in articulating the complaint GP refers to her client becoming increasingly entrenched in his view as matters progressed.
[192] I take that as supporting GP’s argument that her client had genuine concerns about DM representing his former partner, and that he was asserting pressure on her to do something about it.
[193] GP says she was instructed to file a complaint.
[194] I accept her evidence.
[195] The Committee did not agree with her analysis of the conflict issue.
[196] But the sting of the Committee’s finding, was its conclusion that GP had used the complaints process (and her client) as a vehicle to advance a personal agenda.
[197] I do not criticise the Committee from reaching the decision it reached.
[198] But after hearing from GP, I am satisfied that her client was instructing her to file a complaint, that he had discussed the complaints process with GP, and that he was supportive of the complaint being advanced.
[199] In those circumstances, it presents in my view as unsound to base a conduct finding on conclusion that SK’s involvement was reduced to that of a “technicality”.
[200] It is clearly the case that GP played a significant role in the drafting and advancing of SK’s complaint.
[201] But I am not satisfied that the circumstances merit a finding that she had used, or threatened to use, the complaints or disciplinary process for an improper purpose.
[202] Finding that GP had breached r 2.10 by her role in the making of the complaint against DM will be reversed.
Did GP’s indication that a complaint would be filed with the Complaints Service if DM refused to transfer her file to another lawyer, constitute unsatisfactory conduct?
[203] Rule 2.10 provides that a lawyer must not use, or threaten to use, the complaints process for an improper purpose.
[204] The Committee observed that there was ample authority to support the proposition that a threat to make a complaint to the Law Society in order to advance a client’s position, constituted unprofessional behaviour.
[205] In addressing this element of complaint, the Committee recorded that it had given considerable focus to the question as to whether GP’s demands had been made for an “improper purpose”, noting that it was arguable as to whether a demand in the nature of that made by GP, could properly be described as “improper” if the individual advancing the demand had genuine belief that their client’s position was being potentially compromised as a consequence of the opposing lawyer being conflicted.
[206] The Committee considered it was debateable as to whether the materials supported conclusion that GP held a genuine belief that DM or Law Firm A were conflicted.
[207] The Committee concluded, that as GP had “been unable at any time to articulate the nature of the alleged conflict of interest despite extensive correspondence, it was open to the Committee to infer that she did not genuinely believe there was one”.
[208] The Committee did not consider that it was necessary to make a definitive finding on the question as to whether GP was genuine in her view that a conflict of interest existed, having concluded that “the making of the threat by GP was improper, regardless of whether any genuine belief was held”.14
[209] GP considered that she had been poorly served by the Committee’s analysis of her motivations.
[210] She considered the conclusions reached by the Committee to be contradictory. On the one hand, the Committee had concluded that her concerns regarding potential conflict had been genuinely raised. On the other, elements of the decision raised question as to whether those concerns had been genuinely and legitimately advanced.
[211] GP’s discomfort with what she perceived to be a degree of contradiction in the Committee’s reasoning, was compounded by the Committee’s response to a submission she had made to the Committee some months after the complaint investigation had commenced but prior to the Committee issuing its decision. In that submission she said this:
The complaint about conflict of interest is somewhat redundant now because all matters have settled between PXQ and SK and the family trust. All proceedings have been discontinued and settlement monies paid.
[212] GP stated in her final submission, that she “...had hoped that this complaint would have been decided well before now so that PXQ had new lawyers and no conflict existed”.
[213] The Committee considered that the impropriety of GP’s actions and intentions was reinforced by the comments made in her final submission.
[214] GP objected to suggestion that her indication that the conflict of interest issue had become “somewhat redundant” reflected a lack of genuine commitment to the complaint that had been raised.
[215] She explained that there had been significant delay on the part of the Committee in addressing the complaints and having become somewhat wearied by the ongoing process, she saw little purpose in the Committee’s investigation continuing.
[216] GP’s concerns with what she perceived to be indication of contradictory reasoning and ambivalent conclusions in the Committee’s decision are understood, but
critical to the Committee’s finding, was its conclusion that “the making of a threat by GP was improper, regardless of whether any genuine belief was held”.
[217] The Committee considered that GP’s indication to DM that a complaint would be made to the Law Society if DM refused to transfer her file out of Law Firm A’s office within the time frame demanded, was “obstructive and clearly made to gain a tactical advantage”, and “misguided and unprofessional” from the outset.15
[218] GP rejected suggestion that her request of DM to transfer her files (accompanied by advice that she would refer her concerns to the Law Society) constituted an improper demand or reflected an attempt by her to achieve a tactical or strategic advantage in the ongoing litigation.
[219] In her view, she had correctly identified that DM was conflicted, and if DM insisted on continuing to represent PXQ, she (GP) had no other option but to seek the assistance of the Law Society.
[220] GP’s argument, framed in this fashion, suggests that any approach to the Law Society would be for purposes of obtaining guidance and assistance.
[221] With respect to GP, it is understood that she retained a firm conviction that DM (and Law Firm A) were conflicted, but it is difficult to escape conclusion that her threat to engage the Law Society was made with deliberate purpose to assert pressure on DM.
[222] GP made her first request of DM to cease acting for PXQ (and for files to be transferred) in correspondence to DM of 26 May 2022.
[223] The demand is starkly made.
[224] DM is given a timeframe to comply with GP’s demands and cautioned that the Law Society will be engaged, if those demands are not met.
[225] This in circumstances where the question as to whether DM was conflicted was strongly contested and Law Firm A had, on 14 June 2022, made request of GP to provide further explanation as to why she considered Law Firm A to be conflicted and advised that they would, on receipt of that information, obtain further instructions and seek to resolve the issue.16
- [226] And it is demand made in circumstances where DM had continued to represent PXQ over a period of several months without objection being taken, and in circumstances
16 Referenced at [20](b) DM response to Complaints Service,
where DM had proactively proposed arrangements that would distance her firm from matters involving trust property, and these good faith proposals had been explicitly rejected by GP’s client.
[227] Rule 2.10 is straightforward.
[228] The rule represents a basic and fundamental expectation of professional behaviour.
[229] Lawyers should be well aware that using the threat of disciplinary action against colleagues as leverage is unacceptable and falls below the standards expected of members of the profession.
[230] The weaponisation of conduct complaints not only offends professional standards of collegiality and good faith but also constitutes an abuse of the regulatory mechanisms designed to protect the public and maintain professional standards.
[231] I agree with the Standards Committee that GP’s threat to make a complaint to the New Zealand Law Society unless DM ceased acting for PXQ, when considered in context of the exchanges between GP and DM, constituted a breach of r 2.10.
[232] The breach merited an unsatisfactory conduct finding.
[233] In view of the findings reached on review, the orders made by the Committee require variation.
[234] The finding that DM’s conduct was unsatisfactory is reversed. Costs and penalties imposed consequential on that finding are reversed.
[235] The finding that GP’s role in advancing SK’s complaint constituted unsatisfactory conduct is reversed.
[236] The fine imposed on GP (in respect to the two conduct findings) of $2,000 is reduced to $1,000. This adjustment reflects a more proportionate response to the single unsatisfactory conduct finding.
[237] In all other respects, the decision of the Standards Committee is to be confirmed, including, for clarity, the costs award ordered by the Committee in respect to GP.
[238] Where an adverse finding is made, costs will be awarded in accordance with the Costs Orders Guidelines of this Office. Whilst GP has had partial success on review, one unsatisfactory conduct finding has been upheld. It is appropriate that GP contribute to the costs of the review.
[239] Pursuant to s 215 of the Act, I confirm that the order for costs may be enforced in the civil jurisdiction of the District Court.
[240] Pursuant to s 206(4) of the Act, I direct that this decision be published so as to be accessible to the wider profession in a form anonymising the parties and bereft of anything as might lead to their identification.
Orders
(a) The decision of the [Area] Standards Committee [X] that DM’s conduct had been unsatisfactory is reversed, together with the fine and costs orders made consequential on the Committee’s unsatisfactory conduct finding (s 211(1)(a) Lawyers and Conveyancers Act 2006).
(b) The decision of the [Area] Standards Committee [X] that GP’s role in the advancing of SK’s complaint constituted unsatisfactory conduct is reversed.
(s 211(1)(a) Lawyers and Conveyancers Act 2006).
(c) The fine of $2,000 imposed on GP is reduced to $1,000. (s 211(1)(a) Lawyers and Conveyancers Act 2006).
(d) GP is ordered to pay costs in the sum of $700 (costs on review) to the New Zealand Law Society, those costs to be paid within 30 days of the date of this decision.
(s 210(1) Lawyers and Conveyancers Act 2006).
(e) In all other respects the decision of the [Area] Standards Committee [X] is confirmed.
DATED this 29TH day of NOVEMBER 2024
R Maidment
Legal Complaints Review Officer
In accordance with s 213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:
GP as the Applicant DM as the Respondent
WZ as the Applicant’s Representative Ms QR as a related person
[Area] Standards Committee [X] New Zealand Law Society
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