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Fined for disclosing COCA report

07 July 2016

A lawyer, D, who disclosed a Family Court report, despite legislative prohibition on disclosure, has been fined $2,000 by a lawyers standards committee.

Ms A and her former partner Mr B were parties in proceedings under the Care of Children Act 2004 (COCA) relating to their two children. Ms A was represented by Ms C and Mr B was represented by D.

Ms A complained to the Lawyers Complaints Service that D:

  • may have disclosed a report prepared under s 133 of COCA to Mr B’s new partner and sister when they were not parties to the COCA proceedings, despite s 134 of COCA prohibiting such disclosure; and
  • may have misled Ms C in denying her suggestion that he had disclosed the report, despite filing with the Family Court a memorandum in which he admitted breaching s 134 of the COCA.

It was clear to the parties from affidavits accompanying Mr B’s application for day-to-day care of his children that his new partner and his sister had read the s 133 report, the committee noted.

D subsequently conceded in a memorandum that he did, in fact, show the s 133 report to Mr B’s new partner and sister, despite the fact that neither of them were parties to the COCA proceedings.

The standards committee determined there had been unsatisfactory conduct by D in relation to this aspect of the complaint.

Email advice

Ms A told the standards committee that she had instructed Ms C to write to D seeking some clarification from him to confirm whether he had disclosed the contents of the s 133 report, despite the court’s direction not to do so. She said she found D’s email of 20 February 2015 to be offensive. He reportedly advised: “I have not released the s 133 report to anyone and I have grave concerns that this is an attack on my competency and implying that I do not have the ability to practice (sic).”

When directed by the Family Court, D then filed a memorandum indicating that Mr B’s new partner and sister had, in fact, read the s 133 report but stating that there was no malice or under-handedness intended.

D told the committee that a judge’s minute stated that he had apologised in an appropriate fashion to Ms C and Ms A.

He said that he was regretful that the entire incident had occurred.

“[D] offers an apology to the New Zealand Law Society for erring in terms of s 134 of the COCA,” the committee said. “He says that he has learnt a very hard lesson and knows only too well the consequences of such an error.”

Misleading

It was misleading of D to claim in an email to Ms C that he had “not released the s 133 report to anyone” and had only discussed it with his client, the committee said.

“This was plainly not the case, both [Mr B’s new partner and his sister] having confirmed in affidavits filed with Mr [B]’s parenting application that they had read the s 133 report. Indeed, [D] later conceded that this was the case.

“… The standards committee was satisfied that [D] had, by his email of 20 February 2015, actively misled Ms [C].

“Rather than denying what had occurred and responding in a defensive manner to Ms [C]’s email, [D] ought to have immediately admitted his actions and offered an apology to Ms [C] and to the other counsel involved.

“Had [D] done so, it is possible that he would have avoided the present complaint. Instead, [D] did not admit his mistake or offer any apology until he was required to file a memorandum with the Family Court.

“[D]’s apology, coming as it did late in the piece, appears insincere. The standards committee considered that [D] had breached his professional obligations in a manner and to a degree which amount to unsatisfactory conduct.”

As well as the $2,000 fine, the committee ordered D to pay $1,000 costs.

Last updated on the 7th July 2016