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Barrister sent letter without client’s approval

29 June 2018

[Names used in this article are fictitious]

A barrister who sent out an important letter despite her client not having given her the say-so has been fined $1,500 by a lawyers standards committee.

The committee also found that the barrister, Redlaw, failed to keep her client informed and/or consult her about ongoing instructions to an accountant.

The committee made two findings of unsatisfactory conduct by Redlaw.

Redlaw was instructed in January 2014 to provide legal services to Ms Dartle in respect of relationship property and related matters.

Redlaw acted for Ms Dartle until the relationship of trust and confidence between client and lawyer was damaged. In a letter dated 24 August 2016, Redlaw urged Ms Dartle to obtain alternative representation, which she did.

In April 2017, Ms Dartle complained to the New Zealand Law Society about Redlaw’s conduct and the standard of services provided.

One of Ms Dartle’s complaints was that Redlaw sent a letter to her husband’s counsel without her approval. The dispatch of the letter was the cause of the breakdown in the client-lawyer relationship.

The letter advised that Ms Redlaw, through a third party, had received an approach from someone interested in buying a company that her husband had previously said had no value.

Redlaw emailed Ms Dartle a draft letter, seeking approval to send it. Ms Dartle did not respond. Despite that, the letter was sent and copied to her. Redlaw acknowledged that the letter was sent without Ms Dartle’s specific prior approval.

Redlaw said the letter was sent in the context where her client did not want to go to court, there was a four-day fixture looming and they had previously agreed to try to settle matters. Redlaw also said the letter was in accordance with Ms  Dartle’s earlier instructions and was an action that she and Ms Dartle had specifically discussed should occur.

“However, this rather begs the question,” the committee said. “If [Redlaw] had clear instructions as to the course of action to be followed, why did she send the draft letter out for approval?”

Further, an earlier email Redlaw had sent Ms Dartle also made it clear that while the strategy of testing the market had been discussed in general terms, Redlaw did not have current or specific instructions to do that at the time she sent the letter.

“In the committee’s view, the decision to send the letter was a significant decision in the litigation.”

The committee found that Redlaw had breached the provisions of rule 13.3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. That rule requires lawyers to obtain and follow a client’s instructions on significant decisions in respect of the conduct of litigation.

The committee also found that Redlaw had failed to keep Ms Dartle informed and to consult with her in respect of ongoing instructions she provided to a forensic accountant to undertake work on Ms Dartle’s behalf.

Redlaw had a duty “to consult her client about the steps taken (in this case by providing the accountant with approval for ongoing work) to implement the client’s instructions,” the committee said.

“The committee finds that she failed to do so.” There was no evidence that Redlaw was checking with her client that the ongoing work was acceptable or approved, the committee noted.

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

Last updated on the 29th June 2018