Unsatisfactory conduct. Communication with opposing client
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 753.
A lawyer was found guilty of unsatisfactory conduct after communicating directly with the opposing client in a civil dispute without first attempting to contact the other lawyer. She was ordered to pay costs.
The lawyer was representing the plaintiff in a summary judgment application involving a distribution agreement. Ten days before the hearing date, the plaintiff became concerned that the defendant was about to start working for a competitor. Shortly before 5pm that day, a Friday, the plaintiff’s lawyer sent a fax directly to the defendant, demanding that he provide an undertaking, by 6pm the same day, not to reveal confidential information about the distribution agreement to any third party. The plaintiff’s lawyer sent a copy of the fax to the defendant’s lawyer, who complained to the New Zealand Law Society.
Rule 10.2 of the Rules of Conduct and Client Care sets out the circumstances in which a lawyer may communicate directly with a person whom the lawyer knows is represented in the relevant matter. One of those situations is where the matter is urgent and it is not possible to contact the other lawyer or an appropriate member of his or her practice (Rule 10.2.1). In those cases the lawyer must act fairly in communicating directly with the other client, and must promptly notify the other lawyer of the details of the communication.
The plaintiff’s lawyer argued that this was a new matter and that she had no knowledge of whether the complainant was acting for the defendant in this matter. The Standards Committee rejected this argument: the issue had arisen from the distribution agreement that the parties were already litigating, and it was therefore not a new matter.
The Standards Committee also found that this was not a case where the matter was urgent and contacting the other lawyer was not possible. The plaintiff’s lawyer had made no attempt to contact the defendant’s lawyer before sending the fax, but she did send him a copy of the fax. The communication was therefore not authorised by Rule 10.2.1.
The Standards Committee noted that the purpose of Rule 10.2 is to prevent a lawyer obtaining an unfair advantage. Because neither the plaintiff nor its lawyer had obtained any such advantage in this case, the Standards Committee decided not to refer the complaint to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. The Standards Committee found the lawyer guilty of unsatisfactory conduct, and ordered her to pay costs of $500 to the Law Society.
After the Standards Committee heard the complaint but before it issued its decision, the lawyer who had made the complaint told the Standards Committee he was withdrawing it, as all matters had been resolved between the parties. However, the Standards Committee said this did not affect its decision, as it had investigated the complaint and found clear evidence of a breach.