Conduct unbecoming: Lawyer sent letter threatening criminal complaint if compensation not paid
This is a summary of a decision by a Lawyers Standards Committee under the Lawyers and Conveyancers Act 2006. This summary was published in LawTalk 765, 11 February 2011.
A lawyer was found guilty of conduct unbecoming after sending a letter on behalf of her clients, the parents of an alleged sexual abuse victim, threatening to report the matter to the Police if they were not paid compensation.
The clients were Korean, and their 14-year-old daughter had been living and going to school in New Zealand while they remained in Korea. The parents learned through an email from their daughter that she had allegedly been sexually assaulted by her “home stay grandfather”, the father of the girl’s guardian in New Zealand. The parents travelled here several days later and met with the guardian at the lawyer’s offices. He and the parents came to an agreement involving compensation.
The lawyer’s role in this involved sending a fax a week later to the lawyers for the guardian. The fax said she had advised the parents to report the matter to the Police and also that they could pursue the guardian in negligence for exemplary damages. It said she understood the parties had agreed that the guardian would pay $50,000 plus a $2,000 legal fee if the parents did not bring legal proceedings. The fax explicitly said the parents would make a criminal complaint if the money was not paid. In the event, no payment was made, and the lawyer laid a complaint with the Police on her clients’ behalf, alleging sexual assault.
The lawyer told the Standards Committee that the parties had come to the agreement themselves, and she had correctly advised her clients about the legal position in New Zealand. She accepted that the wording of the fax was inappropriate and that she had failed to advise her clients it potentially laid them open to criminal charges for blackmail. However, her clients had pressured her into sending it immediately as they were due to fly back to Korea, and the principal in her firm was not available at the time. The guardian and his lawyer had asked for an agreement or letter to be sent, and there was no intention to threaten them.
The lawyer said that sexual abuse was not openly discussed in Korea, and was dealt with in a manner that would be seen as unsatisfactory in New Zealand. She had been trying, she said, to get the parties to adapt to New Zealand culture.
The Standards Committee found that by sending the fax the lawyer had breached Rule 2 of the Conduct and Client Care Rules, which requires lawyers to uphold the law and to facilitate the administration of justice. She had also breached Rule 2.2, which requires lawyers not to attempt to obstruct, prevent, pervert or defeat the course of justice. These are fundamental rules of professional conduct, the committee said, and lawyers must be extremely careful when settling disputes that involve criminal complaints.
In finding the lawyer guilty of conduct unbecoming and unsatisfactory conduct, rather than misconduct, the Standards Committee accepted she had not knowingly breached her obligations, although she should, of course, have been aware of them and of the relevant criminal law. The Committee did not impose a penalty, but ordered her to pay $500 in costs to the New Zealand Law Society.