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Lawyer fined for placing obligations to client at risk

10 May 2016

A lawyer who signed a consent to be included as a protected person in his client’s application to the Family Court has been reprimanded and fined $1,000.

After a lawyers standards committee reprimanded the lawyer, B, he sought a review by the Legal Complaints Review Officer (LCRO).

B was acting for a client in Family Court proceedings. The other party in the proceedings, Mr A, complained through his lawyer to the Law Society about B.

Mr A complained that when B signed a document consenting to himself being named as a protected person under a protection order this amounted to an abuse of a legal process.

In its view, the committee said, there was potential for a conflict at the point where B was to be an associated party in his client’s protection order. That amounted to unsatisfactory conduct.

The committee reprimanded B and ordered him to pay the Law Society $500 costs.

The LCRO noted that B said he had encountered difficulties with Mr A, who had endeavoured to drive a wedge between him and his client.

“He says he included himself in the application for protection orders in the hope that protection orders would put a stop to behaviour towards him by Mr [A] that he considered unacceptable,” the LCRO said.

Given the requirement that a close personal relationship must exist before protection orders can be made, B was given the opportunity to tender submissions to the LCRO on the professional propriety of him having signed the consent.

“B accepts that by signing the consent to be a protected person he purported to be in a close personal relationship with his client. However, he says at no stage has he been in a close personal relationship with her, and he was never in danger of giving evidence in relation to the grounds advanced for the protection order,” the LCRO said.

B said he did not appreciate he would not qualify for protection under the protection orders, and overlooked the requirement that to be protected he must be in a “close personal relationship” with his client as the applicant for orders.

“He says he ‘quite simply got that wrong’, and signed the consent by oversight, rather than with intention to mislead the Family Court, in the context of an urgent application.”

By signing the consent, the LCRO said, B “unnecessarily involved himself personally in his client’s proceeding.

“The professional propriety of his conduct in that respect is questionable given that he brought his own independence in the proceeding into question, and submitted consideration of his personal circumstances to the Court’s jurisdiction in his client’s proceeding.

“The emphasis is less on whether there was, or may have been, any conflict between his interests or [his client’s], and more on the simple question of whether he could be said to be acting purely in [his client]’s best interests.”

Pursuing his own ends

The LCRO said that according to his own evidence, B was pursuing his own ends through his client’s application.

“His conduct in doing so supports a finding that he contravened [rule 5.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008].” This rule states that “the professional judgement of a lawyer must at all times be exercised within the bounds of the law and the professional obligations of the lawyer solely for the benefit of the client”.

“Applications for protection orders are routine matters in the Family Court jurisdiction,” the LCRO said.

“It is not uncommon for a party to seek to antagonise an opposing party’s lawyer. The situation [B] found himself in is not an unusual one, but his reaction to it is one that should generally be discouraged. The committee’s order that [B] be reprimanded is therefore confirmed.”

It was also appropriate to order B to pay a fine as a punishment, the LCRO said.

“By his conduct he placed compliance with his professional obligations to [his client] at risk, but of greater significance for the purpose of this review, [B] failed in his obligations to the Court. A fine fulfils the three particular functions of punishment, deterrence and reflecting condemnation. In all the circumstances, a fine of $1,000 is appropriate.

“The committee’s order that [B] pay costs of $500 to NZLS is also confirmed,” the LCRO said.

Last updated on the 10th May 2016