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Duty of confidence breached

22 December 2017

[Names used in this article are ficticious]

It was unsatisfactory conduct for a lawyer to give a former client information provided by a person seeking to engage a lawyer, the Legal Complaints Review Officer (LCRO) has found (LCRO 196/2016).

The lawyer, Dumaine, acted for Mr A when he applied for a parenting order and an order to prevent his former partner, Ms B, from removing their child, C, from New Zealand. Ms B was separately represented.

An order preventing removal was made, but no parenting order.

Subsequently, Ms B and Mr A reconciled their differences for a period and during that time signed a consent memorandum to discharge the order preventing removal. Orders were made and Ms B then departed for Australia with C.

Just over two years later, with plans to visit Canada and the United Kingdom, Ms B thought she might need a New Zealand parenting order.

She made an internet search for lawyers practising in her home town and telephoned a law firm which employed Dumaine.

Ms B informed the receptionist at the law firm that she wanted to make enquiries about obtaining a parenting order. The receptionist requested her name, C’s name, and Mr A’s name for the stated purpose of carrying out a conflict check. Ms B provided these details before an interruption to the phone connection ended the conversation.

The receptionist immediately relayed the details Ms B provided to Dumaine who then telephoned Mr A and passed on the information to him. Dumaine then telephoned Ms B and left a message on her voicemail that Mr A would not consent to C “moving to Canada” and asked Ms B to call her back.

Following that phone call Ms B reviewed her emails concerning the parenting issues and realised that Dumaine had acted for Mr A.

Complaint and review

After Ms B complained to the New Zealand Law Society, a lawyers standards committee decided that no further action was necessary or appropriate.

The LCRO said that the committee considered Dumaine acted appropriately in contacting Mr A to advise him of Ms B’s travel plans. The Committee felt that Dumaine did not owe Ms B a duty as she was not a client.

On review, the LCRO found that Dumaine did owe a duty of confidence to Ms B.

“The duty of confidence commences from the time a person makes a disclosure to the lawyer in relation to a proposed retainer (whether or not a retainer eventuates),” the LCRO said.

The LCRO quoted rule 8.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC).

“The rule does not provide for an assessment of the nature of the enquiry such as that referred to by the committee, namely, whether there is a certain level of contact between the person and the lawyer that suggests a degree of, or a greater likelihood of the formation of a retainer so as to qualify as a ‘proposed retainer’.

“In my view that approach could prevent the rule from being ‘applied as specifically as possible’, and ‘…as sensibly and fairly as possible’,” the LCRO said, quoting Wilson v Legal Complaints Review Officer[2016] NZHC 2288 at [43].

“It would introduce an artificial and unintended barrier to imparted information being protected by the rule.

“It could lead to would-be or prospective clients being unable to make full and frank disclosure of all matters relating to the subject which led them to make the enquiry.”

The LCRO also found there was no requirement under r 7 of the RCCC for Ms B to disclose information obtained through the phone call to Mr A. There was no lawyer-client relationship between them and she had not acted for him for more than two years.

As well as the finding of unsatisfactory conduct, the LCRO ordered Dumaine to pay $900 costs.

Last updated on the 22nd December 2017