Unsatisfactory conduct: Improper to threaten criminal complaint for “civil leverage”
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 782, 7 October 2011.
Threatening a criminal complaint in order to gain leverage in a civil case is a breach of the Conduct and Client Care Rules, a Lawyers Standards Committee ruled. It fined the lawyer in question $1,000 and ordered him to apologise in writing.
In a letter demanding information from an opposing client, the lawyer had written:
“You are put on notice that you have five days upon receiving this letter to provide answers to the questions. Failing to do so would result in [the lawyer’s client] issuing legal proceedings, and also filing a complaint with the New Zealand Police.”
The Rules of Conduct and Client Care prohibit lawyers from threatening, whether expressly or implicitly, to make an accusation or disclosure for an improper purpose (Rule 2.7).
The lawyer denied making any threat and said there had been no improper purpose. He said he had simply written to the opposing client according to his own client’s instructions.
The committee, however, was satisfied that there had been a threat and that it had been made for an improper purpose. It remarked that “the improper purpose aspect seems to be where practitioners lose sight of their special position.”
Lawyers have the privilege of representing others in court, but their privileges do not permit them to use a police complaint for “civil leverage”. It was no answer that the lawyer had written the letter on his client’s behalf, because the Rule is aimed at lawyers in their position as representative.
Comparing Rule 2.7 to the criminal offence of blackmail, the committee said that a lawyer’s unique and privileged position was the basis for the broader scope of the Rule. Under the Crimes Act, a person making a threat may have a defence if in the circumstances the threat is a reasonable and proper means for effecting their purpose (section 237(2)). By contrast, Rule 2.7 doesn’t specify a “reasonable and proper means” defence. The lawyer had not attempted to argue that a similar defence was available under the Rules and whether, if it was available, it applied in his case.
The committee found the lawyer guilty of unsatisfactory conduct. As well as ordering him to apologise and fining him, it ordered him to pay $900 costs to the Law Society.